Dec162025
Probate Q&A Series

Can my attorney sign and file the year’s allowance petition for me if I am abroad, and what proof of authority is required? – North Carolina

Short Answer

In North Carolina, a surviving spouse’s claim for a year’s allowance generally must be filed by the surviving spouse or by the spouse’s agent under a durable power of attorney (or, in some cases, a court-approved guardian). An attorney can prepare and file the petition, but if the spouse will not sign the verified petition personally, the filing usually needs written proof that someone else has authority to act—most commonly a durable power of attorney that covers the transaction. If the spouse can sign while abroad, the spouse typically signs the petition and verification before a notary (or other officer authorized to administer oaths), and the attorney files it with the Clerk of Superior Court.

Understanding the Problem

In North Carolina probate, a surviving spouse can ask the Clerk of Superior Court for a year’s allowance from a deceased spouse’s estate. The practical issue is whether the petition can be signed and filed when the surviving spouse is outside the United States or otherwise cannot sign in person. The decision point is whether the petition must be signed and verified by the surviving spouse, or whether a lawyer may sign for the spouse and what documentation must be filed to show the lawyer (or another person) has authority to do so.

Apply the Law

North Carolina law gives a surviving spouse the right to claim a year’s allowance by filing a verified petition with the Clerk of Superior Court in the proper county. The statute also limits who may exercise that right during the spouse’s lifetime: the spouse, the spouse’s agent under a durable power of attorney, or (with court approval) a guardian. Separately, North Carolina procedure recognizes that when a petition requires signatures of affected parties, the clerk may require written authorization filed in the record if the party does not sign personally and an attorney is acting based on authorization.

Key Requirements

  • Proper claimant: The claim must be exercised during the surviving spouse’s lifetime by the spouse, the spouse’s agent under a durable power of attorney, or (with court approval) a guardian.
  • Verified petition: The year’s allowance claim is made by filing a verified petition (a petition sworn/affirmed under oath) with the Clerk of Superior Court.
  • Proof of authority when someone else acts: If someone other than the spouse signs or if the clerk must rely on an attorney’s authorization rather than the spouse’s signature, the file typically needs written authority (commonly a durable power of attorney, or a written authorization filed with the clerk) showing the signer has power to act.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the surviving spouse lives abroad and wants to claim a year’s allowance. North Carolina law expects the claim to be made by a verified petition and limits who can exercise the right to the spouse (or an authorized agent under a durable power of attorney, or a court-approved guardian). That means the attorney can prepare and file the paperwork, but the signature/verification issue usually gets solved either by having the spouse sign and notarize from abroad, or by having an authorized agent (under a durable power of attorney) sign and verify instead and filing the power of attorney (or other written authority) with the clerk.

Process & Timing

  1. Who files: The surviving spouse (preferred when possible) or the spouse’s agent under a durable power of attorney. Where: Clerk of Superior Court (Estates) in the county where venue is proper for the estate administration. What: A verified petition for year’s allowance and any required attachments (often including a copy of the death certificate and estate/letters information; counties vary). When: If a personal representative has been appointed, file within six months after issuance of letters testamentary or letters of administration.
  2. Signature/verification step: If the spouse is abroad, the spouse typically signs the petition and completes the verification in front of a notary (or other officer authorized to administer oaths where the spouse is located). If an agent signs, the agent signs as “attorney-in-fact” and the durable power of attorney (or a certified copy) is usually filed with or presented to the clerk to show authority.
  3. Notice step (when required): If a personal representative has been appointed, the petitioner must personally deliver or mail a copy of the verified petition to the personal representative, and keep proof of delivery/mailing for the file.

Exceptions & Pitfalls

  • Attorney signature vs. authorized agent: A lawyer’s representation alone is not the same thing as being the spouse’s “agent under a durable power of attorney.” If the spouse cannot sign and verify, the cleaner option is often having a properly authorized agent sign (and filing the power of attorney) rather than having the attorney sign only as counsel.
  • Verification problems: Clerks often reject petitions that are not properly verified (missing oath/affirmation, missing notary/jurat, or incomplete identification of who signed). This comes up more often when documents are signed outside North Carolina.
  • Proof of authority not filed: If the petition is signed by someone other than the spouse, or if the clerk must rely on an attorney’s authorization in a clerk proceeding, the clerk may require written authority in the record before acting. Not filing the authorization can delay entry of an order.
  • Deadline misunderstandings: The “no time limitation” language has an important carve-out: once a personal representative is appointed, the six-month deadline after issuance of letters controls for the basic year’s allowance claim.

Conclusion

In North Carolina, a year’s allowance claim is made by filing a verified petition with the Clerk of Superior Court, and the right must be exercised during the surviving spouse’s lifetime by the spouse (or the spouse’s agent under a durable power of attorney, or a court-approved guardian). An attorney may prepare and file the petition, but if the spouse cannot sign, the clerk will typically need written proof of authority for the person signing. The key next step is to file the verified petition with the Clerk of Superior Court within six months after letters issue when a personal representative has been appointed.

Talk to a Probate Attorney

If a surviving spouse is abroad and needs a North Carolina year’s allowance petition filed correctly and on time, our firm’s experienced attorneys can help sort out the signature, verification, and proof-of-authority requirements for the Clerk of Superior Court. 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.