Dec232025
Probate Q&A Series

How do I file a year’s allowance petition to preserve my mother’s spousal right in probate? – North Carolina

Short Answer

In North Carolina, a surviving spouse preserves the right to a year’s allowance by filing a verified petition with the Clerk of Superior Court in the county where probate venue is proper and, if a personal representative has been appointed, delivering a copy of the verified petition to that personal representative by personal delivery or first-class mail within six months after letters are issued. The Clerk can assign specific personal property (and cash) to satisfy the allowance, and the order (often on AOC-E-100) can be used to retitle or transfer the listed items. If the personal property shown is not enough, the Clerk can enter a deficiency judgment to be paid if additional assets later come into the estate.

Understanding the Problem

In North Carolina probate, can a surviving spouse preserve the statutory year’s allowance right by filing a petition with the Clerk of Superior Court, and what filing and notice steps must occur when a personal representative has already been appointed? The decision point is whether the year’s allowance claim was properly made and kept alive through the correct office, in the correct county, and within the required time window tied to the issuance of letters. This question often comes up when the initial petition was filed quickly to meet a deadline and later needs an amendment to identify the specific items of personal property that should be assigned to satisfy the allowance.

Apply the Law

North Carolina law gives a surviving spouse a statutory year’s allowance intended to provide support for one year after the decedent’s death. The claim is made by filing a verified petition with the Clerk of Superior Court (the probate court office) in the county where venue is proper for the estate. If a personal representative has been appointed, the claim must be filed within six months after letters testamentary or letters of administration are issued, and the petitioner must also deliver a copy of the verified petition to the personal representative by personal delivery or first-class mail. The Clerk typically assigns the allowance from the decedent’s cash and other personal property (not real estate) and enters an order listing the property assigned; if personal property is insufficient, the Clerk can enter a deficiency judgment to be paid if sufficient assets later come into the estate.

Key Requirements

  • Verified filing in the proper county: The year’s allowance claim must be made by a verified petition filed with the Clerk of Superior Court in the county where probate venue is proper.
  • Six-month deadline when letters have issued: If an estate personal representative has been appointed, the petition must be filed within six months after letters testamentary/administration are issued.
  • Required delivery to the personal representative: When a personal representative exists, the petitioner must deliver a copy of the verified petition to the personal representative by personal delivery or first-class mail.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts indicate that a year’s allowance petition was filed within the six-month window, which is the key preservation step when a personal representative has already been appointed. Because the petition will be amended to list specific personal property, the practical goal is to ensure the Clerk’s order clearly identifies the items so the signed, certified order can be used to transfer or retitle those assets. Allegations that assets were underreported or transferred before death do not stop the year’s allowance filing itself, but they can affect what property is available to assign and whether a deficiency is entered while recovery efforts proceed.

Process & Timing

  1. Who files: The surviving spouse (or a permitted representative acting during the spouse’s lifetime). Where: Clerk of Superior Court (Estates Division) in the county where probate venue is proper. What: A verified year’s allowance petition; many counties use AOC-E-100 (Application and Assignment Year’s Allowance) for the Clerk’s assignment order and list of property. When: If a personal representative has been appointed, file within six months after letters testamentary/administration are issued and deliver a copy to the personal representative by personal delivery or first-class mail.
  2. Prepare the property list for assignment: Provide a clear, itemized list of the cash and personal property requested (for example, bank accounts, vehicles, household goods, or equipment), along with documents the Clerk typically wants to review (account statements, titles, or other proof of the asset and its value). Bring enough copies so the Clerk can certify copies needed for each institution or asset transfer.
  3. Clerk’s assignment order and certified copies: If the Clerk is satisfied, the Clerk enters an order assigning the allowance and listing the property awarded. Certified copies are then used to transfer the awarded personal property. If the Clerk determines a hearing is necessary (for entitlement, value, or which property should be awarded), the Clerk can require the matter to proceed as a contested estate proceeding.

Exceptions & Pitfalls

  • Missing the PR delivery requirement: Filing on time is critical, but when a personal representative exists, North Carolina also requires delivery of a copy of the verified petition to the personal representative by the specified methods. Skipping this step can create avoidable disputes.
  • Unclear asset descriptions: A year’s allowance order works best when it lists assets precisely (financial institution name and last four digits of account, vehicle VIN, or a specific description of personal property). Vague descriptions can lead to transfer delays and objections.
  • Asset availability disputes: If the personal property shown is limited or appears underreported, the Clerk may assign what is proven and enter a deficiency to be satisfied if assets are later located or recovered. Disputes about whether certain items belong to the estate (for example, property transferred before death) can trigger contested estate proceedings and delay assignment of specific items.

Conclusion

In North Carolina, a surviving spouse preserves the year’s allowance by filing a verified petition with the Clerk of Superior Court in the proper county and, if a personal representative has been appointed, making that filing within six months after letters are issued and delivering a copy of the verified petition to the personal representative by personal delivery or first-class mail. The next step is to file an amended, itemized property list (so the Clerk’s order clearly identifies the specific personal property to be assigned).

Talk to a Probate Attorney

If a year’s allowance petition must be filed or amended quickly, or if there are disputes about what assets belong in the estate, a probate attorney can help line up the required filing, notice, and documentation for the Clerk and protect key 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.

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.