Jan162026
Probate Q&A Series

Can the children claim a family allowance or similar benefit if they are under a certain age, and what assets can be used for that claim? – North Carolina

Short Answer

Yes. In North Carolina, a decedent’s child who was under age 21 at the time of death may claim a child’s year’s allowance (a family allowance) for one year of support, even if the decedent died without a will. The allowance is paid only from the decedent’s cash and personal property (not real estate like the home), and it is generally protected from most creditor claims against the estate.

Understanding the Problem

In a North Carolina intestate estate, the key question is whether a decedent’s child can claim a court-approved “family allowance” based on age, and what property can be used to satisfy that allowance when the estate has a mortgaged home, vehicles, personal property, low cash, and multiple creditors. The decision point is whether the child was under the statutory age threshold at the time of death, because that triggers a specific allowance process handled through the Clerk of Superior Court.

Apply the Law

North Carolina provides a statutory child’s year’s allowance for certain children to help cover support during the first year after death while the estate is being administered. The allowance is claimed by a verified petition filed with the Clerk of Superior Court in the county where venue is proper for the estate. Importantly for asset planning, the allowance is awarded only from cash or personal property of the decedent’s estate and cannot be assigned from real property (such as the house itself).

Key Requirements

  • Child must be eligible by age/status: The child must have been under 21 when the decedent died (including certain adopted children and certain children to whom the decedent stood in loco parentis).
  • Proper petitioner must file: The claim is filed on the child’s behalf by the person with statutory priority (often a guardian or the surviving parent if the child lives with that parent).
  • Allowable funding sources are limited: The allowance can be satisfied only from the decedent’s cash and personal property (for example, bank funds, vehicles, and other personal items), not from the home or other real estate.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe adult children, with some potentially under the age threshold for certain benefits, and an estate with a mortgaged home, vehicles, and personal property but low cash and multiple creditors. Under North Carolina law, any child who was under 21 at the decedent’s death may qualify for a child’s year’s allowance, which can be satisfied from cash and personal property such as vehicles and other non-real-estate items. The home itself generally is not the funding source for the allowance because the statute limits the award to non-real-property assets, which can matter when the goal is reducing the risk of a forced sale to pay creditors.

Process & Timing

  1. Who files: The person with priority to file on behalf of the eligible child (often a guardian or the surviving parent if the child resides with that parent). Where: The Clerk of Superior Court in the county where the estate venue is proper. What: A verified petition requesting the child’s year’s allowance and identifying the personal property proposed to satisfy it. When: If a personal representative has been appointed, the petition generally must be filed within six months after letters of administration (or letters testamentary) are issued.
  2. Clerk review and order: The Clerk can enter an order awarding specific personal property (or cash) toward the allowance. If the Clerk determines a hearing is needed, the matter may proceed as a contested estate proceeding.
  3. Transfer of awarded assets: Once the Clerk enters the order, the awarded personal property can be transferred to the person receiving it for the child’s benefit. If the estate lacks enough personal property to fully satisfy the allowance, the Clerk can enter a deficiency judgment against the estate, which may be satisfied later if additional assets come into the estate.

Exceptions & Pitfalls

  • Spouse’s allowance comes first: If there is a surviving spouse entitled to a spouse’s year’s allowance, that allowance generally must be awarded first and has priority over any child’s allowance.
  • Real estate is not the funding source: The allowance is awarded only from cash/personal property of the decedent’s estate, so planning that assumes the allowance can be “taken from the house” often runs into problems.
  • Not every “asset” is an estate asset: Some items that feel connected to the decedent (for example, certain beneficiary-designated proceeds) may pass outside the probate estate depending on how they are titled or designated. Whether something can be used to satisfy the allowance depends on whether it is part of the decedent’s estate and whether it is cash/personal property rather than real property.
  • Transfers to avoid creditors can backfire: Moving or liquidating property without following the Clerk process and estate rules can create disputes, delay administration, or trigger challenges—especially when creditors exist and multiple heirs are involved.
  • Challenge window: Allowance awards can be challenged in an estate proceeding by parties with standing, so documentation and accurate asset lists matter.

Conclusion

In North Carolina, a child who was under 21 when a parent died can claim a child’s year’s allowance, and the Clerk of Superior Court can award it from the decedent’s cash and personal property—not from the home or other real estate. If a personal representative has been appointed, the practical deadline is to file a verified petition with the Clerk within six months after letters are issued so the Clerk can enter an order awarding specific personal property toward the allowance.

Talk to a Probate Attorney

If you’re dealing with a North Carolina estate that has minor or young-adult children, limited cash, and creditor pressure, our firm has experienced attorneys who can help explain how a child’s year’s allowance works, what property can be used, 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: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.