Short Answer

In North Carolina, an eligible child can claim a priority “year’s allowance” from a deceased parent’s personal property. For decedents who die on or after March 1, 2024, any child under 21 may claim $10,000, paid before general creditors and in addition to the child’s inheritance. If there is a surviving spouse, the spouse’s $60,000 allowance is awarded first. If no personal representative is appointed, you may apply directly with the Clerk of Superior Court; if a personal representative is appointed, apply within six months after letters are issued.

Understanding the Problem

In North Carolina probate, can a surviving parent file with the Clerk of Superior Court to secure a minor child’s priority year’s allowance from the deceased parent’s personal property, and when must it be filed if a personal representative is later appointed? Here, no probate has been opened yet.

Apply the Law

North Carolina law provides a priority, one-year support allowance for a child of a decedent. The allowance comes from the decedent’s personal property (not real estate) and is awarded by the Clerk of Superior Court. For deaths on or after March 1, 2024, any child under age 21 qualifies for a $10,000 child’s allowance. The spouse’s $60,000 allowance is assigned first if a spouse survives. The child’s allowance is in addition to any intestate share and is generally exempt from unsecured creditor claims. If a personal representative (PR) is appointed, the application must be filed within six months after letters are issued; otherwise, the application may be filed without a fixed deadline for these newer cases. A separate “additional allowance” proceeding can seek more support within a capped formula and has its own timing rules.

Key Requirements

• Eligible child: For deaths on or after March 1, 2024, any child under age 21 may claim the $10,000 child’s allowance. For earlier deaths, eligibility and amounts differ by age/status under prior law.
• Priority and amount: The child’s allowance is $10,000 per qualifying child; a surviving spouse’s $60,000 allowance is assigned first if a spouse exists.
• Source of payment: The allowance is satisfied from the decedent’s personal property (cash, bank funds, vehicles, household goods). Real estate and most nonprobate assets (e.g., retirement accounts or insurance payable to named beneficiaries) do not fund the allowance.
• Application and forum: File an Application and Assignment of Year’s Allowance (AOC‑E‑100) with the Clerk of Superior Court in the proper county. If a PR has been appointed, deliver a copy of the application to the PR.
• Timing: If a PR is appointed, file within six months after letters are issued. Without a PR (for post‑3/1/2024 deaths), you may file with the Clerk without a fixed deadline. An “additional allowance” must be sought by special proceeding within one year of death or, if a PR is appointed, within six months after letters.
• Effect and challenges: The child’s allowance is in addition to inheritance and is generally exempt from unsecured creditor claims. Interested parties may seek review; a challenge to an award must be brought within one year of the allowance order.

What the Statutes Say

• North Carolina Gen. Stat. § 30‑17 (Child’s year’s allowance) – Defines eligibility, amount, payment, and basic procedure for a child’s allowance.
• North Carolina Gen. Stat. § 30‑15 (Spouse’s year’s allowance) – Sets the spouse’s $60,000 allowance and priority concepts relevant to allowances.
• North Carolina Gen. Stat. § 30‑27 (Additional allowance proceeding) – Authorizes a larger allowance by special proceeding, subject to an income-based cap and timing rules.
• North Carolina Gen. Stat. § 30‑23.1 (Challenge to allowance) – Allows a proceeding to challenge the award, amount, or assets assigned, within one year.

Analysis

Apply the Rule to the Facts: Because no probate has been opened, the surviving parent may file AOC‑E‑100 with the Clerk to request the child’s allowance from the decedent’s personal property. Vehicles and any cash in the decedent’s name can fund the allowance; the house cannot. Life insurance or retirement accounts payable to named beneficiaries generally bypass the estate and do not fund the allowance, so changes made under a power of attorney may affect what is available. If a PR is appointed later, track the six‑month window from letters.

Process & Timing

1. Who files: The surviving parent or a guardian/next friend for the child. Where: Clerk of Superior Court in the county where the decedent’s estate would be administered. What: Application and Assignment of Year’s Allowance (AOC‑E‑100); bring supporting documents (e.g., bank info, vehicle titles). When: For deaths on/after 3/1/2024, you may file now even if no PR exists; if a PR is appointed, file within six months after letters are issued.
2. The Clerk reviews eligibility and available personal property and signs the assignment. Obtain certified copies to transfer assets (e.g., provide to banks; use for DMV retitling). Timeframes vary by county; simple assignments can be quick.
3. The Clerk’s signed assignment functions as the transfer document. Funds are paid to the surviving parent the child lives with, to the child’s guardian, or held/disbursed by the Clerk if no guardian. If personal property is insufficient, the Clerk notes a deficiency to be satisfied if assets later come into the PR’s hands. To seek more, file an additional allowance special proceeding.

Exceptions & Pitfalls

• If a spouse survives, the spouse’s $60,000 allowance is assigned first and can reduce personal property available for a child’s allowance.
• Nonprobate assets (beneficiary‑designated insurance or retirement, most survivorship accounts) usually do not fund the allowance; confirm how each asset is titled.
• If a PR has been appointed, deliver a copy of the application to the PR; the Clerk can require a hearing, and any challenge must be filed within one year of the allowance order.
• When funds are paid to a guardian, bond and accountings apply; if paid to a parent, no statutory accounting to the Clerk is required, but keep records for the child’s benefit.
• If assets appear diverted before death (for example, last‑minute beneficiary changes by an agent), allowances may not reach them; consider separate legal remedies to investigate and, if appropriate, challenge those transfers.

Talk to a Probate Attorney

If you’re dealing with a child’s year’s allowance and need to protect personal property for support, 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.