Q: Spousal allowance and timeline allowed to file?
The filing for spousal allowance of $20k was formally filed about two weeks after the one year date of death (but within one year of the filing for approval as executor to handle the estate). The filing was initially approved by the court, but I was then later contacted a few months afterwards and was told that it actually wasn't allowed and needed to be amended since it was filed past the one date of death. The surviving spouse has incurred a lot of expenses related to the estate and really needs this money. It doesn't seem right that this has now been "taken back" and not approved. Are there any other options I have as executor to get the spousal allowance paid to the surviving spouse?
A:
If this was so important to the surviving spouse then one would think that she would have timely filed for it. See below statute.
§ 30?16. Duty of personal representative, magistrate, or clerk to assign allowance.
It shall be the duty of every administrator, collector, or executor of a will, on application in writing, signed by the surviving spouse, at any time within one year after the death of the deceased spouse, to assign to the surviving spouse the year's allowance as provided in this Article.
You can appeal the decision. See § 30?23. Right of appeal.
The personal representative, or the surviving spouse, or child by a the child's guardian or next friend, or any creditor, devisee, or heir of the deceased, may appeal from the finding of the magistrate or clerk of court to the superior court of the county, by filing a copy of the assignment and a notice of appeal within 10 days after the assignment, and the appeal shall be heard as provided in G.S. 1?301.2, provided that the hearing on the appeal shall be at the next available session of superior court. Perhaps if the spouse had a really good excuse (just cause) she can get relief. Appealing and litigating costs money though and you might just want to see what assets are in the estate and what would go to the spouse and make an early distribution to her if there is no risk for doing so.
Might want to ask John Huggard in Raleigh for his opinion - he wrote the book so to speak on estate settlement and he is an attorney that other attorneys go to when they have questions. He is not cheap but if you do not have an estate attorney, it would be worthwhile to get a consult with him.
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