Dec292025
Probate Q&A Series

How can I file a year’s allowance claim to protect my surviving parent’s assets from stepparent debts? – North Carolina

Short Answer

In North Carolina, a surviving spouse can file a year’s allowance claim with the Clerk of Superior Court to have up to $60,000 in the decedent’s personal property set aside for support, and that allowance has priority over most creditor claims against the estate. The usual starting point is a verified petition (often on the AOC year’s allowance form) that lists and values the decedent’s personal property to be assigned to the surviving spouse. If the estate does not have enough personal property available, the clerk can enter an order showing a deficiency, and the surviving spouse may need additional steps if later-discovered assets or a personal representative becomes involved.

Understanding the Problem

In North Carolina probate, the question is how a surviving spouse (the surviving parent) can file a year’s allowance claim after a spouse’s death (the stepparent) to keep certain assets from being used to pay the decedent’s debts. The decision point is whether the property being targeted is part of the decedent’s estate personal property that can be assigned as a year’s allowance, as opposed to property that passes outside the estate. Timing can matter if an estate has a personal representative and letters have been issued.

Apply the Law

North Carolina provides a “spouse’s allowance” (often called a year’s allowance) that lets a surviving spouse claim a set value of the decedent’s personal property for one year of support. The allowance is designed to be paid from the decedent’s personal property (not real estate) and, once awarded, it is generally protected from liens, judgments, and creditor claims against the decedent’s estate. The claim is typically made by filing a verified petition with the Clerk of Superior Court in the county where venue is proper for the estate, and special timing rules apply if a personal representative has been appointed.

Key Requirements

  • Eligible claimant: The claimant must be the decedent’s surviving spouse (or the spouse’s authorized agent under a durable power of attorney, or a court-approved guardian in limited situations).
  • Proper filing and venue: The claim is made by a verified petition filed with the Clerk of Superior Court in the county where the estate venue is proper.
  • Identify and value personal property to be assigned: The petition should list the decedent’s personal property proposed to satisfy the allowance and provide reasonable fair market values, because the clerk assigns the allowance from available personal property.
  • Meet the deadline if letters issued: If a personal representative has been appointed, the claim must be filed within six months after letters testamentary or letters of administration are issued, and the petitioner must send or deliver a copy to the personal representative.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the surviving parent is the surviving spouse and can pursue a spouse’s allowance claim by filing a verified petition with the Clerk of Superior Court and listing the decedent’s personal property proposed to satisfy the allowance. The plan to include items like an RV, vehicles, and a bank account aligns with the rule that the allowance is satisfied from personal property rather than real estate. Because the goal is to shield assets from the decedent’s creditors, the key legal point is that a properly awarded spouse’s allowance is generally exempt from creditor claims against the estate, but the assets must be estate assets that the clerk can lawfully assign as the allowance.

Process & Timing

  1. Who files: The surviving spouse (the surviving parent), or an authorized agent under a durable power of attorney. Where: The Clerk of Superior Court (Estates) in the county where estate venue is proper. What: A verified petition for spouse’s allowance (commonly filed on AOC Form E-100, “Application and Assignment of Year’s Allowance,” when available/accepted by the county). Attach or bring documentation supporting marriage and asset values. When: If a personal representative has been appointed, file within six months after letters testamentary/administration are issued and send/deliver a copy to the personal representative; if no personal representative has been appointed, the timing rules can differ and acting promptly still matters.
  2. Clerk review and assignment: The clerk reviews the petition, confirms eligibility as surviving spouse, and assigns specific personal property (up to the statutory value) to satisfy the allowance. If the listed personal property is not enough or is not accessible yet, the clerk may enter an order reflecting what is assigned now and what remains unsatisfied.
  3. Deficiency and follow-up: If the allowance is not fully satisfied from the personal property available at the time, the surviving spouse may pursue a deficiency approach so that later-located estate personal property can be applied, or so the issue is preserved if a personal representative later qualifies and marshals assets.

Exceptions & Pitfalls

  • Mixing up “estate assets” versus “non-probate assets”: A year’s allowance assigns the decedent’s personal property. Property that passes outside probate (for example, some jointly titled assets or beneficiary-designated accounts) may not be available to assign as an estate allowance, even if it feels connected to the decedent.
  • Real estate versus personal property: The allowance is typically satisfied from personal property, not the decedent’s real property. A home sale “outside of probate” may mean the home is not an estate asset the clerk can assign as part of the allowance.
  • Valuation problems: Overstating or understating fair market value can trigger delays or disputes. Using reasonable, document-supported valuations (vehicle values, RV values, and bank statements) helps the clerk assign assets cleanly.
  • Notice and timing when a personal representative exists: Missing the six-month deadline after letters are issued, or failing to send/deliver a copy of the petition to the personal representative, can create avoidable litigation risk.
  • Contested proceedings: Creditors, heirs, devisees, or the personal representative may challenge the allowance’s validity, amount, or the specific assets assigned. North Carolina law provides a process and deadline for those challenges, so the paperwork and asset list should be prepared as if it could be reviewed later.
  • Confusing a standard allowance with an “additional allowance”: Seeking more than the statutory spouse’s allowance generally requires a separate estate proceeding that runs like a contested estate matter and has its own pleading requirements and deadlines.

Conclusion

In North Carolina, a surviving spouse can file a verified year’s allowance petition with the Clerk of Superior Court to have up to $60,000 of the decedent’s personal property assigned for support, and that allowance generally takes priority over creditor claims against the estate. The key is identifying and valuing the decedent’s personal property that is actually available for assignment, and filing on time if letters have been issued. Next step: file the verified spouse’s allowance petition with the Clerk of Superior Court within six months after letters are issued (if a personal representative exists) and provide supporting documents for ownership and value.

Talk to a Probate Attorney

If a family is trying to use a North Carolina year’s allowance to protect a surviving spouse while an estate has debts, our firm has experienced attorneys who can help clarify what property can be assigned, what documents to gather, and what deadlines apply. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.