assignment of years allowance

NC Probate: The Petition for the Year’s Allowance

If you are a surviving spouse whose partner has just died in North Carolina, you may be worried about how you will get along financially while your partner’s estate is under administration, which can take some time to settle.

In this blog, we discuss the concept of a “ year’s allowance ,” which legally exists to ensure that the surviving spouse and dependent children have adequate funds while assets are frozen during the probate process. Probate is a legal proceeding involving the validation of a will or beneficiary designations to settle an estate.

The law in North Carolina goes to great lengths to respect and protect the marital bond, and spouses are entitled to various privileges. The Petition for the Year’s Allowance is a benefit to surviving spouses under North Carolina law.

Read on as our legal team at Carolina Family Estate Planning in Cary, North Carolina, explains this aspect of the estate settlement process. If you need the services of a probate lawyer , be sure to contact us to schedule your free case assessment.

What Is the Spousal Allowance?

The year’s allowance for the surviving spouse (spousal allowance) is a monetary payment from the estate of the person who died (decedent) to their surviving spouse. This small estate filing is a stop-gap measure that allows the surviving spouse to cover their immediate necessities while estate administration presumably ties up their assets.

The petitioning spouse is entitled to the first $60,000 of the decedent’s personal property. However, in some instances, the spouse can apply for an amount exceeding $60,000 if the estate is solvent. As a general rule, the maximum allowance equals 50 percent of the late spouse’s average annual after-tax income over the three years preceding their death.

When calculating a surviving spouse’s year’s allowance, the clerk of court will also consider other parties’ entitlement to an allowance from the deceased spouse’s estate. However, the spouse’s year’s allowance takes priority over judgments, liens, and unsecured claims from creditors.

Children’s Eligibility for a One-Year Allowance

According to N. C. Gen. Stat. § 30-17 , the surviving child of a decedent might be eligible for the year’s allowance, provided that the child is:

• Under the age of 18 years
• Under the age of 22 years and a full-time student
• Under the age of 21 years and mentally incompetent
• Under the age of 21 years and totally disabled

In this context, the term “child” refers to the decedent’s:

• Biological child
• Adopted child
• Child with whom the widow may be pregnant at the death of her husband

Any individual under 18 who resided with the decedent and for whom the surviving spouse or decedent acted as guardian or stand-in parent might also be eligible for the year’s allowance. Each child who meets the above requirements is entitled to an allowance of $5,000.

Where Does Spousal Allowance Come From?

A decedent’s estate can consist of real property and personal property. Generally speaking, real property is immovable and can include land, buildings, mineral rights, and construction materials forming part of a structure.

Personal property includes movable assets in any form, such as vehicles, collectibles, and livestock. Bank accounts, insurance policies, securities, and pensions in the decedent’s name also fall under personal property.

The year’s allowance is paid from the decedent’s personal property. If the personal property is not in North Carolina, the petitioning spouse can file an application at the magistrate or clerk of the court in the county and state where the personal property exists.

My Spouse Died Recently. How Do I Claim the Spousal Year’s Allowance?

In this video, we cover the three key things you need to do to claim the spousal allowance. The first thing to know is that you must claim the spousal allowance within one year of your spouse’s death , so don’t procrastinate on this.

• Second, you’ll want to bring with you valid government-issued photo identification such as a valid driver’s license or passport, an original death certificate for your spouse, any original documentation relating to the assets you are claiming such as the original car title, bank statement, check, or similar. Also, most counties do not accept personal checks, and while some counties accept credit or debit cards, they may impose a processing fee. Thus, we generally recommend bringing cash. The filing fee for the spousal allowance is currently $20.
• Third, once the clerk of court approves your application for the spousal allowance, you’ll take the court-stamped document to the applicable institution for updating the asset you’re trying to transfer into your name. For example, if it’s an automobile, you’ll take it to the DMV. If it’s a bank account, you’ll take it to the bank that holds the account. If it’s a check addressed to your spouse, you can take it to your bank with the court forms.

We know this can be a confusing and overwhelming time. You’re not alone. We help you claim the Spousal Year’s Allowance. If you need help determining your best course of action, give our office a call, and we’ll help you figure out your next steps.

What Happens If Your Spouse’s Property Doesn’t Cover the Year’s Allowance?

In some cases, the decedent’s personal property is worth less than $60,000. When this happens, the surviving spouse can apply for a deficiency judgment against the estate.

Upon the discovery of other assets, the surviving spouse becomes the estate’s primary creditor with the right to transfer or withdraw the assets.

The deficiency judgment offers protection against creditor claims on the decedent’s estate and allows the surviving spouse to claim the total allowance amount over time.

Conditions for Disqualification

In some cases, the surviving spouse might not be eligible to claim the year’s allowance. The spouse loses their qualification for the year’s allowance if they:

• Waived their right to the allowance in a postnuptial or prenuptial agreement
• Are guilty of killing the decedent
• Lived in adultery when the decedent died
• Waited longer than a year after the decedent’s death to apply for the allowance
• Willfully abandoned the decedent before their death
• Did not have a valid marriage with the decedent

Carolina Family Estate Planning: Your Probate Attorney in Cary, North Carolina

Founder and attorney Jackie Bedard and the experienced legal team at Carolina Family Estate Planning can help you navigate the probate process and apply for the year’s allowance so you can cover your expenses. At Carolina Family Estate Planning, we help families build better lives by planning for a secure future via estate planning, asset protection , and long-term care planning . Call us today at 919-443-3035 to schedule a needs assessment call. We’re here to help.

Copyright © 2022. Carolina Family Estate Planning. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

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Raleigh Estate Planning and Corporate Law Attorneys

What is a “Year’s Allowance”?

February 24, 2017 By wrlaw

One of the really helpful estate administration forms that folks may not know about is what’s called a “Year’s Allowance”.

The “Year’s Allowance” form is something we use a lot when it comes to dealing with the estate of a spouse who has died and left a widow or widower.  In situations where the couple had most of their assets set up jointly or had named each other as beneficiary, there often is very little that needs to be transferred from the deceased spouse to the surviving spouse.  Most often, it’s things like vehicles or small checks made payable to the deceased spouse as reimbursement for insurance premiums.

The Year’s Allowance allows for the assignment of up to $30,000.00 in personal property (vehicles, money, etc.) from the deceased spouse to their surviving spouse, without having to go through probate.  To the extent that the value of the property in the name of the deceased spouse is $30,000.00 or less, it can be transferred to the surviving spouse by simply completing one form and having it certified by the Clerk of Court in your county.

An example: Joan dies in 2014, leaving her husband, Bill.  Joan had an IRA, of which Bill was the named beneficiary.  Joan and Bill had a checking and savings account, of which they were joint owners.  Joan had a 2010 Honda Accord (worth $12,000.00) that she owned solely.  Their home was owned as tenants by the entirety.

When Joan died, Bill was left wondering what would need to be done from a probate standpoint to transfer Joan’s assets to him.  Fortunately for Bill, out of all the things listed above, he only needs to worry about the 2010 Accord.  The IRA has Bill listed as beneficiary, meaning he need only file a death claim with the company managing the IRA.  The jointly-owned checking and savings accounts can be closed by Bill and reopened in his name alone without any legal authority.  Joan’s interest in the home automatically transferred to Bill upon Joan’s death because they owned it as tenants by the entirety.  The only thing that Bill can’t transfer without legal authority is the car.

Bill would simply fill out the Year’s Allowance form, sign it and have his signature notarized, and take it, along with Joan’s death certificate and her original will (if she had one) to the Clerk of Court.  (There is a fee associated with the Year’s Allowance — currently it is $8.00 — so Bill needs cash as well).  Once there, the Clerk will review the documentation, and assuming everything is complete, he or she will sign it, place a raised seal on it, and hand it back to Bill.

From there, Bill would take the certified Year’s Allowance, along with the title to the Accord, to the DMV, present both, and ask that title be transferred to him.

What this means is that Bill has completed the administration of his Wife’s estate with one form.

Behold, the magic of the Year’s Allowance!

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Spousal Year’s Allowance

by Durham Law Firm | Probate

Losing a spouse is one of the hardest losses a person can go through. On top of the grief, the surviving spouse also may have to deal with the probate process and all the headaches that can come from that.

They are hearing all sorts of new phrases and balancing that with trying to figure out their next steps. One of those phrases they may hear could be the year’s allowance or the spousal year’s allowance.

This is definitely something that is important for surviving spouses to know about as it impacts them directly and, depending on the size of the estate, could be the main thing they have to worry about.

What is the spousal year’s allowance?

There are two types of year’s allowance that the executor of an estate may hear about: one for children of the decedent and one for the surviving spouse. A spousal year’s allowance is intended to provide a means of support for the surviving spouse throughout the administration of the estate.

When it was originally written into law, it was to help widows and children of the decedent in their time of need and to prevent the time it takes to administer the estate of a deceased person from impoverishing the family in the meantime.

Today, the allowance applies to both men and women but still exists to help them during an already difficult time. It is available in both testate and intestate estates, meaning surviving spouses are entitled to it whether or not the decedent had a will.

If the decedent had a will, the spousal allowance is applied against the amount the surviving spouse takes under that will. It is not credited against the share the surviving spouse takes if there is not a will.

How much is it?

There are two different ways to figure out the spousal allowance. The minimum amount according to North Carolina statutes is $60,000. The spouse may also apply for an allowance of greater than $60,000 depending on the income of the deceased person.

The maximum amount is one half of the average annual net income of the decedent for the three years immediately preceding the decedent’s death. This net income means take home pay after taxes. These amounts are to provide the surviving spouse the same level of support they may have been accustomed to prior to losing their loved one.

What can be used to pay?

The spousal allowance is paid using personal property, including but not limited to money in accounts and from any vehicles the decedent owned. Real property, meaning land and buildings, cannot be used to satisfy the spousal allowance. The spousal allowance also takes priority over claims against the estate. This means that the spousal allowance gets paid before any other claims.

However, if there is a secured interest in the personal property, such as a lien against it, that amount is subtracted from what can be used to pay the spousal allowance. For example, if the person dies with a car worth $10,000 and the car has a lien of $4,000 on it, only $6,000 can go towards the spousal allowance.

What if there is not enough personal property?

If there is not enough personal property to cover the $60,000 for a spousal allowance, the clerk will file a deficiency judgement in the estate. If additional assets later get put into the estate, those can be used to pay towards the deficiency.

The deficiency has no expiration date; however, it is important to note that if there is a child’s year’s allowance, the amount assigned will be prorated to pay an equal portion of both allowances.

How does a surviving spouse apply for the year’s allowance?

Generally, it is the duty of the personal representative of the estate, also often called an executor or administrator, to assign the allowance if the spouse applies for it within one year of the decedent’s death.

However, if there is no personal representative or if the personal representative fails to assign the allowance to the surviving spouse, the spouse or their attorney can go directly to the clerk to apply for the spousal allowance using form E-100 and including the filing fee for that document.

If the surviving spouse wishes to apply for more than the $60,000 minimum, they will need to file a petition and have a special proceeding before the clerk. This filing must show that the spouse is entitled to the greater amount by showing that the estate is worth more than $60,000 and whether an allowance has already been made to the spouse or not.

What would keep the surviving spouse from getting their yearly allowance?

There are a few times that a spouse legally would not be entitled to the spousal allowance. Those situations include:

• If the decedent and surviving spouse were separated at the time of death, if the surviving spouse was living in adultery at the time of the death, or if the surviving spouse is considered to have willfully abandoned their spouse • If the surviving spouse is determined to be a “slayer” under North Carolina law, meaning that they are found guilty or plead guilty to killing the decedent • If the surviving spouse waived the right to a year’s allowance in a premarital agreement • If the surviving spouse renounces or waives the right to a year’s allowance

There may also be times that other heirs challenge whether someone is really a spouse or not. For example, if there is not a valid marriage license or if the decedent was already married when they got remarried.

While these cases are not common, they have happened and have led to challenges against the estate and the spousal allowance for some individuals. You can prevent many of these types of situations by having a proper estate plan in place, especially if you and your significant other are not legally married.

It is also possible for the personal representative, surviving spouse, a child/the child’s guardian, or a creditor, or other heir to appeal the assignment of the spousal allowance if they file a notice of appeal within 10 days after the assignment. If they do appeal, there will be a hearing in superior court.

The spousal year’s allowance is designed to make sure they are able to do just that while navigating the estate administration process and waiting for any inheritance. With some small estates, this may be the only thing the surviving spouse has to do.

If you’re not sure how to apply for the spousal year’s allowance or if you’re eligible for it, the probate attorneys at Hopler, Wilms, & Hanna are happy to walk you through the process and answer any questions you have about the spouse’s year’s allowance, or any other probate questions you may have. Please reach out to schedule a consultation with one of our knowledgeable and experienced attorneys!

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How The “Year’s Allowance” Helps After A Spouse’s Death

The death of a spouse can be devastating for many people. The emotional and financial struggles that come with the loss are very difficult to handle, especially in the early days after their passing. However, one thing you should not neglect is your finances.

If your spouse was responsible for handling all of the family’s finances before they passed away, it may be hard to manage everything on your own. This blog post will go over the benefits of the “year’s allowance” after a spouse’s death so you can make sure to take care of yourself and your children financially while going through a difficult time.

The Year’s Allowance In North Carolina

The spousal allowance (or “year’s allowance”) is an allowance that one receives from the deceased spouse’s estate after the death of the spouse. It is typically given in the form of a lump sum or the assignment of certain assets, such as vehicles titled in the name of the deceased spouse.

This type of assistance can help widowed spouses with the financial burdens they may be facing, such as bills and mortgage payments. Widows can invest their spousal allowance in any way they want, depending on what is going to be most beneficial for them financially.

In 2021, the spousal allowance in North Carolina provides for up to $60,000 from the estate to help in the transition, whether they died with or without a will (intestate).

Do Children Get Anything For A Year’s Allowance?

The dependent allowance is a form of financial support given to children after the death of their father or mother. The allowance can be in the form of money, assets, property, and so on.

The purpose for this type of financial support is twofold: to replace parental income and to provide quick access to funds. In 2021, the dependent allowance in North Carolina allows for quick access of up to $5,000 per dependent.

Children qualify for a dependent allowance if they are:

• Under the age of 18 years old, OR
• Under the age of 22 years old and attending a higher education institution, OR
• Under the age of 21 years old and declared mentally incompetent or totally disabled

A child can be excluded from eligibility, however, if the child is born out of wedlock, except in very specific instances provided in the law.

How Long Does A Surviving Spouse Have to Claim the Spousal Allowance?

A surviving spouse has 12 months from the time of their spouse’s death to claim this benefit.

As long as the surviving spouse applies for the spousal and/or dependent allowance within one year of the deceased spouse’s death, the executor of the estate is responsible for providing access to the assets or funds. If the executor fails to act within 10 days of the request, however, the surviving spouse (or their attorney) can apply directly to the clerk of court using this form:

Application And Assignment Year’s Allowance | North Carolina Judicial Branch

Can A Spouse Lose Their Qualification For The Spousal Allowance?

Yes, but such instances are considerably limited. If the surviving spouse does not want or require the allowance, they may waive their rights to it by making a decision after their spouse’s death.  The right may have been waived in a prenuptial or postnuptial agreement.  Or, the surviving spouse may be disqualified to claim an allowance in one of the following ways:

• They pleaded or were found guilty of killing the deceased spouse and were deemed a “slayer” under North Carolina’s slayer laws.
• If the deceased spouse and the surviving spouse were legally separated at the time of the deceased spouse’s death.
• If the surviving spouse was living in adultery at the time of the deceased spouse’s death.
• If the surviving spouse is deemed to have “willfully abandoned” the deceased spouse prior to the deceased spouse’s death.
• If the marriage between the deceased spouse and the surviving spouse is determined to be invalid.

Contact Our Estate Planning Professionals Today

The spousal allowance can be a lifesaver after the death of a spouse. You need money to help in the first year after your partner’s death, and this is one way you can get it quickly.

David Anderson and his team know how to work with probate proceedings so that you’re able to receive the funds from your deceased spouse’s estate without any delays or issues. Contact us today for a consultation on how we can help ensure you are protected after the death of a spouse.

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Change in the Law – North Carolina Year’s Allowance

As of January 2019 the Year’s Allowance in North Carolina has been adjusted. For a surviving spouse there is an increase in the statutory allowance from $30,000.00 to $60,000.00. The Spousal Allowance is intended as a type of stop-gap; a means of meeting the immediate needs of the surviving spouse when he or she is widowed and presumably assets may be tied up during the estate administration.

The $60,000.00 Spousal Allowance is authorized by statute to provide for necessities. It may only be paid from the personal property of the Decedent and not from real property. With the exception of secured creditors, the property assigned has priority over the creditors of the estate. If there are not enough personal property assets to satisfy the assignment, a “deficiency judgment” is given. If there are sufficient assets, the spouse may make an application to the Clerk of Court for an allowance greater than $60,000.00. Such an additional allowance would only be allowed in solvent estates and would provide the surviving spouse with the same level of support during the year after the Decedent’s death that the spouse had been accustomed to receiving from the Decedent. The maximum amount is “one-half of the average annual net income (after tax income) of the Decedent for the 3 years immediately preceding the Decedent’s death”. However, the Clerk may only assign this with “due consideration for other persons entitled to allowances for year’s support from the Decedent’s estate.”

It is the duty of the Executor or Administrator to pay the Year’s Allowance if the spouse applies for it within one year of the death of the deceased spouse. You should note, it is not the duty of the personal representative to ask the surviving spouse if he or she wants the allowance, only to fulfill it once applied for. The surviving spouse can apply directly to the Clerk or Court for the Year’s Allowance.

The surviving spouse, a child or a creditor can appeal the award of a Year’s Allowance within 10 days of the assignment.

There are certain circumstances when the surviving spouse is not entitled to the Year’s Allowance. By statute these include voluntarily separating from the spouse and living in adultery, willfully abandoning the spouse, if surviving spouse killed the Decedent (a “slayer”), or a valid premarital agreement waived the right. In addition, case law adds another restriction. If the surviving spouse lived in a state other than North Carolina, they cannot be awarded the Year’s Allowance. This could be problematic for spouse’s whose jobs require that they live in different states such as the military. It is the opinion of this author that the Legislature should legislate around this 100+ year old case.

The other “Year’s Allowance” that is allowed is the Child’s Allowance. Under N. C. Gen. Stat. § 31-17, whenever any parent dies “survived by any child under the age of 18 years, including an adopted child or a child with whom the widow may be pregnant at the death of her husband, or a child who is less than 22 years of age and is a full-time student in any educational institution, or a child under 21 years of age who has been declared mentally incompetent, or a child under 21 years of age who is totally disabled, or any other person under the age of 18 years residing with the deceased parent at the time of death to whom the deceased parent or the surviving parent stood in loco parentis, every such child shall be entitled to receive an allowance of five thousand dollars ($5,000) for the child’s support for the year next ensuing the death of the parent.” This amount did not increase with the change to the Spouse’s Allowance but similar to the surviving spouse, a child can petition the Court for an additional amount under certain circumstances.

If there are not enough personal property assets to satisfy both the surviving spouse and the children, the allowance is prorated. If the Decedent died with a Will, the amounts awarded are credited towards the amount taken under the Will. If the Decedent died without a Will, the amounts awarded are in addition to the amount taken under the intestate succession statute. If you have questions about a Spousal Allowance or a Child’s Allowance, the attorneys in the estate department of Law Firm Carolinas can assist you.

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• How The Years’ Allowance Can Help After a Spouse’s Death

by Admin | Sep 22, 2021 | Wealth and Estate Planning

The loss of a spouse is one of the most difficult things a person can endure and dealing with Estate and financial issues can make it harder. The “Year’s Allowance” is designed to make the financial burden easier for North Carolina families in the short term by providing quick access to funds without the time and expense of the Probate process.

What Is the Year’s Allowance?

Under North Carolina law , when a married person passes away, their surviving spouse is entitled to receive up to $60,000 (as of 2021) from the Estate in order to help support them for the first year of their transition, regardless of whether they died testate (with a Will) or intestate (without a Will).

In some cases, the law provides for a higher amount of support based on the income of the deceased spouse. This amount is calculated based on the average annual income of the deceased spouse in the three years immediately prior to their death. This amount is also calculated on net (take-home) income, not gross (pre-tax) income.

Do Children Get Anything for A Year’s Allowance?

In addition to the support provided from the Estate for the spouse, children can be provided with $5,000 each under the same structure as the spousal Year’s Allowance given, they meet the following criteria:

• Under the age of 18 years old, OR
• Under the age of 22 years old and attending a higher education institution, OR
• Under the age of 21 years old and declared mentally incompetent or totally disabled

A child can also be excluded from eligibility if the child is born out of wedlock, except in one of the following cases:

• The deceased father has recognized the paternity of the child by deed, will, or other writing, OR
• The deceased father died prior to the child’s birth or within a year of their birth and is established to be the father of the child by DNA testing

This support is available for biological children, adopted children, and even children where the spouse is pregnant at the time of the decedent’s death. Since children cannot receive real property in a Will until they reach the age of 18, the funds from this are paid to the surviving spouse for the benefit of the child.

If the child does not reside with a surviving spouse or parent when the allowance is paid, the allowance will be paid to the child’s general guardian or guardian of the Estate, if any, and if none to the clerk of the superior court who will receive and disburse the allowance for the benefit of the child.

How Are the Funds Disbursed?

The court has a specific form that can be completed to claim the Year’s Allowance here: https://www.nccourts.gov/documents/forms/application-and-assignment-years-allowance

Generally, the Executor of the Estate is responsible for providing the Year’s Allowance to the surviving spouse and children as long as the surviving spouse applies for it within one year of the deceased spouse’s death. If the Executor fails to act within 10 days, or if the deceased spouse died Intestate, the surviving spouse or their attorney can apply directly to the clerk of court using the form above.

What Assets Can Be Used to Pay the Year’s Allowance?

The Year’s Allowance for a surviving spouse and children can be paid using almost any available personal property to the Estate, including bank accounts, cars, property, and other assets, as long as there is not a secured lien against the asset.

This allowance gets precedence over any other claims against the Estate, except for secured liens. In the case of a secured lien, such as a car loan, the value would be calculated as the value of the asset minus the outstanding amount of the lien.

Can A Spouse Lose Their Qualification for The Allowance?

Yes, but those ways are fairly limited. The surviving spouse can waive their rights to the allowance if they do not want or need it either by making the decision after the death of their spouse or by prenuptial or postnuptial agreement, or they can be disqualified in one of the following ways:

• If the surviving spouse pleads or is found guilty of killing the deceased spouse.
• If the surviving spouse and deceased spouse were legally separated at the time of the deceased spouse’s death.
• If the surviving spouse was living in adultery or deemed to have “willfully abandoned” the deceased spouse at the time of the deceased spouse’s death.
• If the marriage between the deceased spouse and the surviving spouse is determined to be invalid.

Contact Our North Carolina Estate Planning Team

The Year’s Allowance is a useful tool to help a surviving spouse and children weather the first year after a loved one’s death and is a great option as a part of a larger Estate Plan. The team at McCollum Law helps families of all shapes and sizes craft an Estate Plan to protect their loved ones after a family member passes away. Contact us today at 919-861-4120 or www.mccollumlawpc.com to schedule a consultation and get started with protecting your family’s future!

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Application Guidelines for YEAR's ALLOWANCE

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Application Guidelines for YEAR’S ALLOWANCE [N.C.G.S. 30-15, 30-16, 30-17, 30-21]

This packet contains the following forms: ➢Application and Assignment Year’s Allowance (AOC-E-100) ➢ Marriage Affidavit ➢ Family History Affidavit

➢NOTE: Additional forms may be required to begin the qualification process and will be determined based upon the circumstances.

READ FORMS CAREFULLY AS THEY CONTAIN INSTRUCTIONS AND INFORMATION NECESSARY IN THIS PROCESS. ONLINE RESOURCES • General Information about the Estate Administration Process • Estates Division YouTube Video Tutorials • NC Courts Guide & File Service • View Estates Division WebEx Virtual Appointment Availability (Click here to submit an appointment request)

THE YEAR’S ALLOWANCE IS AVAILABLE IN THE FOLLOWING SITUATIONS… ➢The decedent lived in North Carolina and left a surviving spouse or eligible child ➢The decedent has personal property located in North Carolina and the surviving spouse is a North Carolina resident.

This filing cannot be used when: • It has been more than twelve months since the date of death • The decedent left no spouse and no child who would be eligible for the Allowance

STEPS FOR PROCESSING… The following items must be presented to the Court for filing: 1. Application and Assignment Year’s Allowance (AOC-E-100) 2. Marriage Affidavit 3. Family History Affidavit 4. Supporting documents for the decedent’s personal property 5. Original Will (if one exists) 6. Death Certificate 7. Filing fee: $20 plus a $3 certified copy fee per item of property to be transferred. If a will is filed, add an additional fee of $1 plus $0.25 for each page after the first. (Acceptable forms of payment: Certified check or money order payable to “Clerk of Superior Court.”)

EXPLANATION OF TERMS: • Decedent: Individual who passed away • Personal Representative: A person who has been appointed to administer an estate. This term may refer to an executor, an • Applicant: The person who is applying for a year’s allowance for administrator, or an administrator c.t.a. themselves or on the behalf of the decedent’s surviving spouse or qualifying child • Probate: The legal process in which the decedent’s estate is administered. • Affidavit: A sworn or affirmed statement that has been made under oath. • Affiant: The person who is making a sworn or affirmed statement under oath.

Completed filings may be dropped off during normal business hours at: Mecklenburg County Courthouse, 832 E. 4th Street, Charlotte NC 28202 You may also mail completed filings to: Clerk of Superior Court, Estates Division, PO Box 37971, Charlotte NC 28237 Estates Phone Number: 704-686-0460 Estates E-Mail: [email protected] File No. STATE OF NORTH CAROLINA In The General Court Of Justice County Superior Court Division Before The Clerk IN THE MATTER OF THE ESTATE OF Name Of Decedent APPLICATION AND ASSIGNMENT YEAR’S ALLOWANCE Date Of Death G.S. 30-15, 30-16, 30-17, 30-21 I am applying for an allowance for a year’s support for the person(s) named and state: 1. a. The decedent died a resident of this county on the date shown above. b. The decedent did not die a resident of this county, but personal property that belonged to the decedent at his or her death, which was on the date shown above, is located in this county. 2. The surviving spouse, if any, named below is entitled to an allowance from the personal property of the decedent of the value of sixty thousand dollars ($60,000), for a year’s support if the surviving spouse has not forfeited that right.* The child(ren), if any, named below is/are entitled to an allowance of five thousand dollars ($5,000) for a year’s support.* 3. I request assignment of Sixty thousand dollars ($60,000) from the funds or other personal property of the decedent for a year’s support to the surviving spouse. Five thousand dollars ($5,000) from the funds or other personal property of the decedent for a year’s support to each child named below. SPOUSE AND CHILD(REN)* ENTITLED TO ALLOWANCE Full Name Age Relationship Complete Address (including zip code)

*NOTE: For a surviving spouse to be entitled to receive an allowance, he or Name And Address Of Applicant (type or print) she must have been a resident of North Carolina at the time of the decedent’s death, or the decedent must have been a resident of North Carolina at that time. See S.L. 2019-113. For a child to be entitled to receive an allowance, he or she must be one of the following: (1) a child under the age of 18 years, including an adopted child or a child with whom the widow was pregnant at the death of her husband; (2) a child who is less than 22 years of age who is a full-time student in any educational institution; (3) a child under 21 years of age who has been declared mentally incompetent; (4) a child under 21 years of age who is totally disabled; (5) a person under the age of 18 years who resided with the deceased parent at the time of death and to whom the deceased parent or the surviving parent stood in loco parentis . Telephone No. Of Applicant See G.S. 30-17 and G.S. 12-3(16), (17). Date SWORN/AFFIRMED AND SUBSCRIBED TO BEFORE ME

Date Signature Of Person Authorized To Administer Oaths Signature Of Applicant

Deputy CSC Assistant CSC CSC Magistrate Spouse Of Decedent Child/Full-Time Student

Date Commission Expires Personal Representative Next Friend Of Child Notary Guardian County Where Notarized SEAL Other:

Original-File Copy-Applicant (Over) AOC-E-100, Rev. 7/19 © 2019 Administrative Office of the Courts ASSIGNMENT OF YEAR’S ALLOWANCE I have examined the above application and have determined the money and other personal property of the decedent. I find that the allegations in the application are true and that each person(s) named in the application is entitled to the allowance requested. I ASSIGN to the applicant the funds or other items of the personal property of the decedent listed below, which I have valued as indicated. This property is assigned free and clear of any lien by judgment or execution against the decedent and is to be paid by the applicant to the person(s) entitled. I assess as a DEFICIENCY the amount, if any, shown below, which is to be paid or delivered to the proper person when any additional personal assets of the decedent are discovered.

Personal Property Assigned Value

TOTAL $ DEFICIENCY $ Date Signature Assistant CSC Clerk Of Superior Court Magistrate SEAL CERTIFICATION I hereby certify that the foregoing is a True and Correct copy of the report in the Assignment of Year’s Allowance in the matter of the above-referenced estate as recorded in this office and shall be sufficient to release the items listed as assigned to the surviving spouse or children of the deceased as provided under G.S. 30-15, 30-17, and 30-21. Date Signature Deputy CSC Assistant CSC Clerk Of Superior Court SEAL

AOC-E-100, Side Two, Rev. 7/19 © 2019 Administrative Office of the Courts STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF MECKLENBURG BEFORE THE CLERK

In the Matter of the Estate of: ) ) AFFIDAVIT )

I, ______(Affiant’s printed name), the undersigned affiant, first being duly sworn, depose and say that:

1. The undersigned and the above named decedent obtained a valid marriage license and were united in marriage in a lawful wedding ceremony;

2. The undersigned never divorced the above named decedent and was still married to said decedent on the date of said decedent’s death;

3. The undersigned and said decedent have not signed a separation agreement that waives spousal inheritance rights;

4. The undersigned has not committed any act barring the right to a Year’s Allowance under Article 1, Chapter 31A of the General Statutes of North Carolina, including but not limited to the following: voluntarily separating from the decedent and living in uncondoned adultery, willful abandonment of the decedent without just cause and refusal to live with the decedent continuing to the time of decedent’s death, bigamy; and

5. The undersigned executes this Affidavit for the purpose of requesting the Year’s Allowance as provided for in Article 4 of Chapter 30 of the General Statutes of North Carolina.

Further your Affiant sayeth not, this the ______day of ______, 20_____.

Affiant Sworn to and subscribed before me this the

day of 20_____.

Deputy / Assistant Clerk of Superior Court / Notary Public MCSC-E-011 [MCSC-ES-027] updated 07-12-2019 STATE OF NORTH CAROLINA ► File No. In The General Court Of Justice Mecklenburg County Superior Court Division Before The Clerk IN THE MATTER OF THE ESTATE OF: Name Of Decedent

Name, Street Address, PO Box, City, State and Zip Code of Affiant FAMILY HISTORY AFFIDAVIT

INTERROGATORIES ABOUT DECEDENT AND FAMILY

Telephone No.

Legal Residence (County, State) Relationship

1. Marital Status: Married Widowed Divorced Never Married a. If Married/Widowed/Divorced: Name of Spouse: Date of Marriage: Date of Divorce (or death): b. Names and Addresses of children born into this marriage: Name Address

c. Is there an unborn child? Yes No

2. Did any of the children listed above die prior to the date the decedent died? Yes No a. If yes: Name of pre-deceased child:

Did the pre-deceased child have children? Yes No

If yes, names of children:

3. Has the decedent been married more than once? Yes No

a. If yes, name of prior spouse:

(Over) b. Names and Addresses of Children Born into this marriage: Name Address

4. Did the decedent have any children that were born outside of marriage? Yes No a. If yes, list names and addresses: Name Address

5. Did the decedent leave: a. An adopted child? Yes No b. A child that has been adjudged mentally incompetent? Yes No

6. Are the parents of the decedent living? Yes No If yes, list names below. a. Mother: b. Father:

7. How many brother and sisters did the decedent have? Name Address (if known)

8. Did any of the siblings listed above die prior to the date the decedent died? Yes No a. If yes: Name of pre-deceased sibling(s):

Did the pre-deceased sibling(s) have children? Yes No

Signature of Affiant Date

SWORN/AFFIRMED AND SUBSCRIBED TO BEFORE ME Date Signature

Deputy CSC Assistant CSC Clerk of Superior Court

Date Commission Expires Notary

SEAL County Where Notarized

• Allowance_(money)
• Child_abuse
• Child_neglect
• Extended_family
• Noncustodial_parent
• Manohar_Untwal
• Renuka_Chowdhury

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• Estate Planning: The Difference between Year’s Allowance and Elective Share

February 26, 2016

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In North Carolina, there are several laws in place intended to prevent you from effectively disinheriting your spouse. These laws include the Year’s Allowance and the Elective Share . Both of these laws are under Chapter 30 (Surviving Spouses) of the North Carolina General Statutes. These laws allow the surviving spouse to get as much or a little more from his or her inheritance as they would have if the deceased spouse had died without a will or intestate. Why is this important? Because the deceased spouse’s will could leave everything that doesn’t pass automatically to the surviving spouse to his or her children, family, a charity, or anyone else besides the surviving spouse – a possibility that is common with second marriages where the spouse has children from a previous marriage or relationship that he or she wants to make sure benefit from the deceased person’s estate.

The Year’s Allowance allows the surviving spouse, within the first year of the deceased spouse’s death, to claim as much as $30,000 of the deceased spouse’s estate (from what hasn’t already passed automatically by law). This is intended to give the surviving spouse enough resources to manage his or her affairs during that first year after his or her spouse’s death (the time period by which the affairs of the estate are being administrated). The statute contains a provision for minor children as well.

In comparison, the Elective Share allows for the surviving spouse, within six months after the estate is opened (letters have been issued) to claim a larger portion of the deceased spouse’s estate. The couple’s length of marriage determines how much of a percentage to which the surviving spouse is so entitled.  If the couple were married for less than five years, 15%.  If the couple were married for less than 10 years, 25%.  If the couple were married for less than 15 years, 33%, and if the couple were married 15 years or more, then 50%.

Of course, with both of these provisions, there is a laundry list of qualifying and disqualifying stipulations. These statutes are in place to essentially circumvent a decedent’s last will and testament to allow a surviving spouse to take more than perhaps what was intentionally left to him or her. Because there may be facts that change the surviving spouse’s situation and circumstances, it is extremely important to consult an estate planning attorney before pushing the will aside and deciding to take either one or both of these elections and allowances.

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