Aug142025
Probate Q&A Series

What should be included when I file a year’s allowance petition in North Carolina? — North Carolina

Short Answer

In North Carolina, a basic year’s allowance is usually requested with a court form, but a “petition” is used when you seek more than the standard amount ($60,000 for a surviving spouse or $5,000 for an eligible child). A petition for an additional allowance must state the facts that make you eligible, the dollar amount you seek, whether any allowance has already been assigned (and its value), and that the decedent’s personal estate exceeded the standard allowance. File within one year of death, use the correct county, serve the petition and summons, and be prepared with evidence of the decedent’s finances and the property available to fund the allowance.

How North Carolina Law Applies

North Carolina provides two tracks: (1) a standard year’s allowance ($60,000 for a surviving spouse; $5,000 for eligible children) assigned from the decedent’s personal property, and (2) an additional allowance by special proceeding if the standard amount is not enough. The standard allowance is typically requested on a court form and assigned by the clerk without a full lawsuit. A “petition” is used for the larger, additional allowance and is filed as a special proceeding. That petition must include specific statements, be served on respondents with a special proceeding summons, and will be decided after a hearing.

If you only need the standard allowance, you usually file an Application and Assignment of Year’s Allowance and list the personal property to be assigned (cash, accounts, vehicles, household goods, etc.). If you seek more than the standard amount, your petition must include the required allegations and supporting facts so the clerk can determine eligibility and the right amount.

Key Requirements

  • Eligibility and amounts. A surviving spouse is generally entitled to a $60,000 allowance, and certain children (minors, qualifying students, some disabled children, or a child to whom the decedent stood in loco parentis) are generally entitled to $5,000. These are paid from the decedent’s personal property. If that is insufficient for support, a spouse or eligible child may petition for an additional allowance.

  • What to include in a petition for an additional allowance. In a special proceeding for an allowance above the standard amount, include: (1) facts that show you are entitled to a year’s support; (2) the dollar value you are asking the clerk to assign; (3) a statement whether any allowance has already been made to you and its nature and value; and (4) a statement that the decedent died leaving personal property exceeding the standard allowance amount. There is no pre-printed petition form for this special proceeding, so you draft it and attach exhibits as needed.

  • Property available. Allowances come from the decedent’s personal property (not real estate). Common items include bank accounts, cash, marketable securities, vehicles, jewelry, and household goods. Motor vehicles can be assigned as part of the allowance and then retitled.

  • Cap and how the amount is set. For additional allowances, the clerk sets an amount sufficient for support considering the decedent’s estate and finances and other persons entitled to allowances. The total of all allowances in the estate cannot exceed one-half of the decedent’s average annual net (after-tax) income for the three years before death. Bring proof of those figures (e.g., tax returns, pay stubs) if you seek more than the standard amount.

  • Priority, effect, and protection. Allowances are generally assigned before most creditor claims and are exempt from general judgment liens against the decedent. A spousal allowance in a will-based estate is treated as an advance against the spouse’s devise; it is not charged against a spouse’s intestate share. Existing liens on specific property (for example, a car loan) still attach.

  • Deadline and venue. File within one year of the decedent’s death. Petitions for an additional allowance are filed in the county where the estate is administered or the will was probated; if there is no administration, file where proper under the statutes.

Process & Timing

  1. Choose the right track. If you want the standard allowance, complete the Application and Assignment of Year’s Allowance and list the personal property to be assigned and its values. If you need more than the standard amount, draft and file a petition as a special proceeding.

  2. Standard allowance filing. File your application with the clerk of superior court in the county of the decedent’s residence. The clerk identifies eligible recipients, determines the estate’s personal property and values, assigns property or funds, and issues lists documenting what was assigned. If the estate lacks enough personal property, the clerk enters a deficiency judgment to be satisfied if more assets are later collected.

  3. Additional allowance petition filing. File your verified petition in the proper county. Include the required statements listed above and attach supporting documents (death certificate, marriage certificate, proof of child’s status, inventory information, bank statements, vehicle titles, and evidence of the decedent’s net income over the last three years).

  4. Summons and service. When you file a special proceeding, the clerk issues a special proceeding summons. You must serve the petition and summons on the named respondents under Rule 4 (for example, the personal representative, heirs/devisees whose shares could be impacted, or others with a stake). Respondents generally have 10 days after service to answer. If a respondent raises disputed factual issues or equitable defenses (e.g., abandonment), the matter is transferred to a judge for hearing.

  5. Hearing and order. The clerk holds a hearing, decides entitlement, sets the amount (subject to the statutory cap), and assigns specific personal property or funds. The clerk prepares at least three signed lists of the items and values assigned and files/returns them as required. You must serve the clerk’s judgment on the other parties. Any aggrieved party has a short window (10 days) to appeal to superior court.

  6. Timing pointers. The standard allowance may be applied for anytime within one year of death. The petition for an additional allowance must be filed within one year of death and, by statute, after the date stated in the estate’s general notice to creditors. Court costs apply; amounts and procedures can change, so confirm current fees before filing.

What the Statutes Say

Exceptions & Pitfalls

  • One-year deadline. You must apply within one year of death. Petitions for additional allowances must also be filed after the date stated in the estate’s general notice to creditors.

  • Loss or waiver of rights. A spouse can be disqualified by certain conduct (acts barring property rights) or by a written waiver/renunciation. See, for example, § 31A-1, § 31A-4, and § 31B-1.

  • Personal property only. Real estate is not assigned under a year’s allowance. Also note that assets with survivorship rights (for example, certain joint accounts or a mobile home titled as tenants by the entirety) may pass outside the estate and are not available to fund an allowance.

  • Service mistakes. For additional allowances, you must serve the petition and special proceeding summons under Rule 4. Improper service can delay or defeat your petition.

  • Evidence of need and cap. If you seek more than the standard amount, bring credible evidence of the decedent’s after-tax income for the three years before death and your support needs. Without it, the clerk may limit or deny an additional allowance.

  • Appeal window is short. Any aggrieved party must appeal within 10 days. The clerk’s order remains in effect unless stayed.

Helpful Hints

  • For a basic allowance, list specific personal property and realistic values (statements, appraisals, or guides like KBB for vehicles) to make assignment easier.
  • For an additional allowance, gather the decedent’s last three years of tax returns and pay records to show average net (after-tax) income.
  • Identify and serve logical respondents (often the personal representative and interested heirs or devisees) to avoid delays.
  • Bring titles, VINs, and loan payoff info for any vehicles you want assigned; this speeds up retitling.
  • Court costs change; check the current fee schedule on the North Carolina Judicial Branch website before you file.

Talk to a Probate Attorney

If you’re preparing a year’s allowance filing or need an additional allowance to cover living costs, our firm can help you assemble the right facts, file on time, and present your case to the clerk. 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.