Probate Q&A Series

How do I switch to a small estate process if I hit the $60,000 year’s allowance cap in North Carolina? — North Carolina

Short Answer

After the $60,000 spousal year’s allowance is set, you can use North Carolina’s small estate options if the decedent’s remaining personal property fits the limits. Collection by affidavit is available 30 days after death when no personal representative has been appointed and the net personal property is $20,000 or less, or up to $30,000 if the surviving spouse is the sole heir or sole devisee (calculated after subtracting the spousal allowance). If letters have already been issued, you generally cannot “switch” to an affidavit; consider summary administration (spouse only) or continue full administration.

How North Carolina Law Applies

North Carolina gives a surviving spouse a $60,000 year’s allowance and certain children a $5,000 allowance each. Those allowances come off the top from the decedent’s personal property. If what is left of the estate’s personal property is small enough, you may use a streamlined process instead of full probate.

Two main small-estate routes may help: (1) collection by affidavit (the most common) and (2) summary administration if the surviving spouse is the only heir or devisee. With collection by affidavit, you wait 30 days after death, file a short affidavit, and use certified copies to collect bank funds, vehicles, and other personal property—no bond, no inventory, and no public creditor notice. If a personal representative has already been appointed, that affidavit option is off the table. In that situation, if the spouse is the only heir or devisee, the spouse may request summary administration, which ends further court-supervised administration but makes the spouse responsible for the decedent’s debts.

Example: Suppose the decedent’s total personal property was $88,000. The spouse claims the $60,000 year’s allowance. If the spouse is the sole heir or devisee, the remaining $28,000 can qualify for collection by affidavit (because the spouse-only cap is $30,000 and the calculation is after the allowance). If there is already a personal representative, consider summary administration instead.

Key Requirements

  • Year’s allowance basics: The spouse can claim $60,000; eligible children can claim $5,000 each. The allowance must be claimed within one year of death and is paid before general creditors.

  • Collection by affidavit (small estate):

    • Available 30 days after death if no application for or issuance of letters is pending or granted anywhere.
    • Net personal property (after liens) must not exceed $20,000; if the surviving spouse is the sole heir/devisee, the cap is $30,000 and is calculated after subtracting the $60,000 spousal allowance.
    • Who may file: an heir, devisee, named executor, public administrator, or a creditor. The filer must be qualified to serve (no statutory disqualifications).
    • Testate estates: the will must be admitted to probate and a certified copy attached; a certified copy must also be recorded in each county where the decedent owned real property.
    • No bond, no inventory after filing, and no published creditor notice are required in the affidavit procedure.
  • Summary administration (spouse only): Available when the surviving spouse is the sole heir or sole devisee (not allowed if the will says otherwise or leaves the spouse property in trust). The spouse assumes liability for the decedent’s valid debts and taxes. The clerk issues an order that the spouse uses to collect assets; no further administration is required.

  • Other narrow alternatives: Payment to the clerk if the only estate asset is a debt of $5,000 or less owed to the decedent; DMV affidavit for transferring title to a motor vehicle in limited situations.

Process & Timing

  1. Confirm the numbers: List all personal property and subtract liens. Apply the $60,000 spousal allowance (and any child allowances). If the remaining personal property is at or under the cap ($20,000, or $30,000 if the spouse is the only heir/devisee), you may use collection by affidavit—provided no letters are pending or issued.

  2. If eligible for collection by affidavit:

    • Wait at least 30 days after death.
    • Complete and file the Affidavit for Collection of Personal Property with the clerk in the county of domicile; pay the filing fee. If there is a will, first probate it and attach a certified copy; record a certified copy in each county where the decedent owned real property.
    • Obtain certified copies of the filed affidavit from the clerk.
    • Present certified copies to banks, employers, DMV, and others to collect the decedent’s personal property.
    • Distribute in order: first the spouse/child allowances; then valid claims by statutory priority; then any remainder to the will beneficiaries or heirs. File the final affidavit showing collections and disbursements.
  3. If letters are already issued: You cannot use the affidavit. Continue full administration, or if the spouse is the only heir/devisee, discuss with counsel whether summary administration is appropriate in your county.

  4. Considering summary administration (spouse-only): File the petition with the clerk. If granted, use the certified order to collect the decedent’s assets. No inventory or creditor notice is required, but the spouse becomes liable for valid estate debts.

  5. If the only asset is a small debt or a vehicle: For up to $5,000 owed to the decedent, ask about payment to the clerk and disbursement by the clerk. For a single vehicle, the DMV title assignment affidavit may apply.

What the Statutes Say

  • G.S. 30-15 and G.S. 30-17: Spousal ($60,000) and child ($5,000) year’s allowances; paid from personal property and ahead of general creditors.
  • G.S. 30-27: Procedure to request an additional allowance above $60,000/$5,000 by special proceeding and timing rules.
  • G.S. 28A-25-1 and G.S. 28A-25-1.1: Collection of personal property by affidavit (intestate and testate), including the 30-day wait, eligibility limits, and who may file.
  • G.S. 28A-25-3: What the affiant does with collected property—pay allowances, then claims by statutory priority, then distribute any remainder.
  • G.S. 28A-28-1, -2, and -3: Summary administration when the surviving spouse is the sole heir/devisee and effect of the order.
  • G.S. 28A-25-6: Payment to clerk of money owed to a decedent (up to $5,000) and how the clerk disburses it.
  • G.S. 20-77: DMV process for assigning motor vehicle title after death in limited situations.
  • G.S. 28A-19-6: Order of claims if the estate must pay creditors.

Exceptions & Pitfalls

  • Letters issued = no affidavit: If any personal representative or collector has been appointed (or an application is pending), you cannot use collection by affidavit.
  • Spouse-only higher cap is after the allowance: The $30,000 small-estate cap for spouse-only estates applies after subtracting the $60,000 spousal allowance from the total personal property.
  • Real estate doesn’t count toward the cap: Land value does not affect eligibility for the affidavit. But real estate can still be reached to pay estate debts, and the affidavit does not authorize selling real property.
  • No creditor notice in the affidavit route: Because there is no published notice to creditors, consider full administration if there are disputed claims or unknown debts.
  • Newly found assets: If additional personal property later pushes the estate above the small-estate limit, you must seek appointment of a personal representative and convert to full administration.
  • Summary administration tradeoff: It is fast, but the spouse becomes liable for valid debts and taxes. Do not choose it unless you understand that responsibility.
  • Testate checklist item: If there is a will, you must probate it before using the affidavit and attach/record certified copies as required; skipping this step delays transfers.

Helpful Hints

  • Bring a complete list of the decedent’s personal property with balances and liens so the clerk can confirm whether the small-estate threshold is met.
  • Ask the clerk how many certified copies of the affidavit or order you will need for banks, employers, and DMV.
  • Confirm whether accounts or vehicles were jointly owned with a right of survivorship; those may pass outside probate and affect eligibility.
  • If you are the spouse and sole heir/devisee, run the numbers both ways to compare collection by affidavit versus summary administration.
  • Procedures and fees can change; call ahead to your county clerk to confirm current filing fees and any local practices.

Talk to a Probate Attorney

If you’re weighing collection by affidavit, summary administration, or full probate after claiming the $60,000 year’s allowance, 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.