Dec152025
Probate Q&A Series

Do I need a hearing for a year’s allowance, or can it be decided based on the paperwork? – North Carolina

Short Answer

Under North Carolina law, a standard year’s allowance (family allowance) for a surviving spouse or child is usually decided by the clerk of superior court based on the written application and supporting documents, without a formal hearing. However, the clerk has authority to require a hearing and convert the matter to a contested estate proceeding if questions arise about entitlement, the amount, or which assets should satisfy the allowance.

Understanding the Problem

The question is whether a year’s allowance in a North Carolina probate estate must always go to a hearing, or whether the clerk of superior court can decide it from the paperwork alone. In a typical estate, a surviving spouse or qualifying child files an application asking for the statutory year’s allowance from the decedent’s personal property. The concern is whether that allowance will be handled as a quick, administrative matter or as a more formal, contested proceeding with a hearing before the clerk.

Apply the Law

North Carolina’s family allowance statutes give the clerk of superior court primary responsibility for determining entitlement to a year’s allowance, the amount, and the personal property used to satisfy it. The default process is a verified application filed in the proper county; the clerk reviews the paperwork and, if everything is in order and uncontested, enters an order assigning the allowance. The law also gives the clerk power to require a hearing and send the matter into a contested estate proceeding when there is a dispute or when the clerk decides that more evidence or testimony is needed.

Key Requirements

  • Proper applicant and petition: A surviving spouse or qualifying child (or an authorized fiduciary on their behalf) must file a verified petition or application for a year’s allowance in the county where venue is proper for the estate.
  • Timely filing and notice: If a personal representative has been appointed, the application for the standard allowance must be filed within six months after issuance of letters, and a copy must be delivered or mailed to the personal representative.
  • Clerk’s review and discretion on hearings: The clerk reviews the application, determines the property and value to be awarded, and may either sign the order based on the paperwork or direct that the matter proceed as a contested estate proceeding with a hearing if a dispute or uncertainty exists.

What the Statutes Say

Analysis

Apply the Rule to the Facts: In a routine North Carolina estate where a surviving spouse files the standard Application and Assignment of Year’s Allowance (AOC-E-100) with supporting documentation and no one objects, the clerk will typically review the file and sign an order based on the paperwork alone. If, however, the personal representative disputes eligibility, questions the assets listed, or contends that the estate is insufficient to fund the allowance, the clerk can require that the matter proceed as a contested estate proceeding with a hearing under the allowance statutes and related estate procedure rules.

Process & Timing

  1. Who files: The surviving spouse, qualifying child, or an authorized fiduciary. Where: Clerk of Superior Court in the county where venue is proper under North Carolina’s estate venue statute. What: Verified petition or AOC-E-100 Application and Assignment Year’s Allowance, with basic asset information and relationship facts. When: If a personal representative has been appointed, the standard allowance application must be filed within six months after letters are issued.
  2. The clerk reviews the application, confirms entitlement and available personal property, and determines the amount and which assets will satisfy the allowance. In most uncontested cases, the clerk signs the order based solely on the petition and documents, and then certifies copies to allow transfer of the awarded assets.
  3. If the clerk decides a hearing is necessary, or if a party seeks an additional allowance under the statute governing additional allowances, the matter proceeds as a contested estate proceeding. After the hearing, the clerk enters a written order either granting, modifying, or denying the requested allowance; any later challenge generally must be brought within one year of that order under the contested allowance statute.

Exceptions & Pitfalls

  • If the clerk believes the paperwork is incomplete, conflicting, or suggests a dispute among heirs, beneficiaries, or creditors, the clerk can require a contested estate proceeding and hearing even if none of the parties has formally objected yet.
  • Missing the six-month window after letters are issued (when a personal representative exists) can forfeit the right to the standard statutory allowance, which may significantly affect the surviving spouse’s or child’s support and the estate’s distribution.
  • Failing to serve or deliver a copy of the verified petition to the personal representative, when one has been appointed, can cause delay, require re-service, or fuel later challenges under the statute that allows contested proceedings regarding allowances.

Conclusion

In North Carolina, a standard year’s allowance for a surviving spouse or child is generally handled by the clerk of superior court on the written application, without a formal hearing, as long as the petition is properly filed, timely, and uncontested. The clerk reviews the verified paperwork, determines the assets and value to be awarded, and enters an order assigning the allowance. A hearing becomes necessary only if the clerk exercises the statutory discretion to require a contested estate proceeding, so the most important step is to file a complete, timely application with the clerk within six months after letters are issued when a personal representative is in place.

Talk to a Probate Attorney

If a year’s allowance or family allowance is at issue in a North Carolina estate and there are questions about whether it can be handled on the papers or may require a hearing, our firm has experienced attorneys who can help explain the process and protect the client’s interests. 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 a specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If there is 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.