Short Answer

In North Carolina, the surviving spouse has first priority to serve as administrator when someone dies without a will. You open the estate by filing an application for Letters of Administration with the Clerk of Superior Court in the county where your spouse was domiciled, take the oath, and satisfy bond requirements. After you qualify, publish notice to creditors, file an inventory, and then use your Letters to receive settlement funds and manage estate assets. Out-of-state property may require ancillary steps in that other state.

Understanding the Problem

In North Carolina, how do you, as the surviving spouse, apply with the Clerk of Superior Court to open an intestate estate and be appointed administrator so you can receive a personal injury settlement payable to the estate? One key fact here is that you and one child are the only heirs.

Apply the Law

When a person dies without a will in North Carolina, the Clerk of Superior Court appoints an administrator to collect assets, pay debts, and distribute what remains to heirs. Venue is generally the county where the decedent was domiciled at death. The surviving spouse has first priority to serve, but must qualify by filing the required application, taking an oath, and addressing bond. After qualification, the administrator must publish notice to creditors on a timeline and file an inventory. A personal injury claim that survives death can be pursued or settled only by a qualified personal representative.

Key Requirements

• Priority to serve: The surviving spouse has first right to be appointed administrator, subject to disqualification rules.
• Proper venue and filing: File in the Clerk of Superior Court in the county of the decedent’s North Carolina domicile using the standard application form for intestate estates.
• Qualification steps: Take the oath, address any bond (often waivable by all adult heirs for a resident administrator), and obtain Letters of Administration.
• Creditor process: Publish and, where applicable, send notice to creditors, then observe the claim window before final distributions.
• Inventory and reports: File an inventory within three months of qualifying and follow ongoing reporting rules until closing.
• Claims authority: Only a qualified personal representative may pursue or settle survival/personal injury claims for the estate.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-4-1 (Order of appointment) – Sets who has priority to serve as administrator; the spouse is first in line.
• North Carolina Gen. Stat. § 28A-6-1 (Application for letters) – Describes the application and evidence needed to obtain Letters.
• North Carolina Gen. Stat. § 28A-14-1 (Notice to creditors) – Requires the personal representative to give public notice to creditors and sets timing.
• North Carolina Gen. Stat. § 28A-18-1 (Survival of actions) – Confirms that personal injury claims survive and must be handled by the estate’s personal representative.

Analysis

Apply the Rule to the Facts: Because your spouse died in North Carolina without a will and you are the surviving spouse, you have first priority to be appointed administrator. You file in the county of your spouse’s domicile, qualify (oath and bond), and receive Letters. With Letters, you can receive the personal injury settlement into the estate, publish creditor notice, and file the inventory. The decedent’s out-of-state storage items may require an ancillary step in that other state after you open the North Carolina estate.

Process & Timing

1. Who files: Surviving spouse. Where: Clerk of Superior Court in the North Carolina county of the decedent’s domicile. What: AOC-E-202 (Application for Letters of Administration), AOC-E-400 (Oath), AOC-E-401 (Bond, if required), and then receive AOC-E-403 (Letters of Administration). When: File as soon as practical; publish creditor notice within about 30 days after you qualify; file the inventory within three months of qualification.
2. After Letters issue, open an estate bank account, publish the Notice to Creditors, send written notices to known creditors when applicable, and wait through the claim period (often at least three months from first publication). Timing can vary by county.
3. Collect the personal injury settlement, marshal assets (including the North Carolina residence), resolve valid claims and expenses, and make distributions under intestacy. File required accountings and close when complete.

Exceptions & Pitfalls

• Summary administration usually won’t fit: It’s available only if the surviving spouse is the sole heir. Because a child is also an heir, use full administration.
• Bond waivers have limits: Adult heirs can consent to waive bond for a resident administrator. If any heir is a minor, or you live outside North Carolina, expect to post bond or appoint a resident process agent (AOC-E-500).
• Out-of-state property: Personal property in another state may require ancillary authority there to access or transfer it.
• Real estate quirks: In intestacy, title to North Carolina real property passes to heirs at death but can be reached to pay valid claims; coordinate sales and creditor notice carefully.
• Nonprobate accounts: Joint or payable-on-death accounts may pass outside probate but can sometimes be reached if estate assets are insufficient to pay allowed claims.

Talk to a Probate Attorney

If you’re dealing with opening an intestate estate and need authority to receive a settlement or manage property, our firm has experienced attorneys who can help you understand your options and timelines. 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.