Jan12026
Probate Q&A Series

How can a surviving spouse who lives outside the country apply for a year’s allowance from an estate? – North Carolina

Short Answer

In North Carolina, a surviving spouse who lives outside the country can still apply for a year’s allowance by filing a verified petition with the Clerk of Superior Court in the county where venue is proper for the estate. The petition must be filed by the spouse during the spouse’s lifetime, or by the spouse’s agent under a durable power of attorney (and in limited cases by a guardian with court approval). If a personal representative has been appointed, the petition generally must be filed within six months after letters are issued and a copy must be delivered or mailed to the personal representative.

Understanding the Problem

Under North Carolina probate law, a common question is whether a surviving spouse who lives outside the United States can still claim the “year’s allowance” from a deceased spouse’s estate, and what must be filed with the Clerk of Superior Court to request it. The decision point is who is allowed to sign and file the verified petition when the surviving spouse is not physically in North Carolina. The key timing trigger is whether a personal representative has been appointed and letters have been issued in the estate.

Apply the Law

North Carolina provides a statutory “spouse’s allowance” (often called a year’s allowance) intended to support a surviving spouse for the year after the decedent’s death. The allowance is assigned by the Clerk of Superior Court from the decedent’s cash or other personal property (not real estate). The claim is made by filing a verified petition in the proper county estate file, and if a personal representative is serving, the law imposes a specific filing window tied to the issuance of letters.

Key Requirements

  • Proper claimant and signature authority: The claim must be exercised during the surviving spouse’s lifetime by the surviving spouse, the spouse’s agent acting under a durable power of attorney, or (with court approval) a guardian.
  • Verified petition filed with the Clerk: The request is made by filing a verified petition with the Clerk of Superior Court in the county where venue is proper for the estate.
  • Deadline and notice if a personal representative exists: If a personal representative has been appointed, the petition generally must be filed within six months after letters are issued, and the petitioner must deliver or mail a copy of the verified petition to the personal representative.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the surviving spouse lives outside North Carolina but wants to petition for a year’s allowance. North Carolina law focuses less on where the spouse lives and more on (1) filing a verified petition with the Clerk of Superior Court in the proper county and (2) making sure the petition is signed by someone the statute authorizes (the spouse, the spouse’s durable power of attorney agent, or a guardian with court approval). If a personal representative has been appointed, the filing should be made within six months after letters are issued and a copy of the verified petition should be delivered or mailed to the personal representative.

Process & Timing

  1. Who files: The surviving spouse, or the spouse’s agent under a durable power of attorney (or a guardian with court approval). Where: The Clerk of Superior Court (Estates) in the county where venue is proper for the estate in North Carolina. What: A verified petition requesting the spouse’s year’s allowance (commonly filed on the North Carolina AOC year’s allowance form used by clerks). When: If a personal representative has been appointed, file within six months after letters testamentary or letters of administration are issued.
  2. Provide notice to the personal representative (if one exists): If a personal representative is serving, send a copy of the verified petition by personal delivery or first-class mail to the personal representative. Keep proof of mailing or delivery for the estate file if the clerk requests it.
  3. Clerk review and order: The Clerk of Superior Court reviews entitlement and the estate’s personal property and then enters an order assigning cash or personal property (not real estate) to satisfy the allowance. If the clerk determines a hearing is needed, the clerk can require the matter to proceed through a contested estate proceeding.

Exceptions & Pitfalls

  • Signing authority problems: A lawyer for the estate generally should not sign a verified petition “for” the spouse unless the lawyer also represents the spouse and has proper authority (for example, the spouse signs, or the spouse’s durable power of attorney agent signs as agent). If the spouse is abroad, planning for notarization and verification requirements early helps avoid delays.
  • Missing the six-month window after letters: When a personal representative is appointed, the six-month deadline can control even if the death occurred earlier. Waiting for international mail, apostilles, or consular notarization can create avoidable timing risk.
  • Wrong property listed: The allowance is assigned from cash or personal property of the estate, not real property. Petitions that assume real estate can be “awarded” as the allowance often require correction or a different strategy.
  • Notice to the personal representative: If a personal representative is serving, failing to deliver or mail a copy of the verified petition to the personal representative can create procedural problems and delay the clerk’s order.
  • Contested proceedings: If the clerk requires a hearing or if someone with standing challenges the allowance order, the matter can shift into a contested estate proceeding with formal service and deadlines.

Conclusion

In North Carolina, a surviving spouse who lives outside the country can still apply for a year’s allowance by filing a verified petition with the Clerk of Superior Court in the proper county. The petition must be signed by the spouse (or a properly authorized durable power of attorney agent, or a guardian with court approval), and the allowance is paid from cash or personal property of the estate. If a personal representative has been appointed, the next step is to file the verified petition with the clerk within six months after letters are issued.

Talk to a Probate Attorney

If a surviving spouse lives outside the country and needs to file a North Carolina year’s allowance petition on time and in the correct form, our firm has experienced attorneys who can help explain the options, signature requirements, and deadlines. 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.