Okatie, SC asked in Probate for North Carolina

Q: Spouse passed away with no will and has lawsuit settlement check coming in. What forms are needed to receive the money?

My mom passed away in November without a will & has a settlement check coming in payable to her name. Her assets are less than the NC $30k spousal years allowance qualifications and I was told we could possibly fill out the Application & Assignment Years Allowance form (AOC-E-100) instead of filing a small estates affidavit. Can my dad (her spouse) use form this form (AOC-E-100) vs. filing the small estate affidavit since this is the only asset she has? The claim boards for her suit state we need to reach out to our local jurisdiction for information on acceptable types of estate documents. We're hoping to make this process as easy as possible. Thank you

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1 Lawyer Answer
Sara W. Harrington
Sara W. Harrington
  • Probate Lawyer
  • Carrboro, NC
  • Licensed in North Carolina

A: My condolences to you and your family on the loss of your mother.

Yes, your father can file AOC-E-100 form with the Clerk of Court to get his spousal allowance without having to open an estate. Actually, the allowance has been increased to $60,000, so if there are any other assets such as vehicles that need to be transferred, that can be handled with the spousal allowance as well. I've included the section of the law regarding the spousal allowance because I thought it might be of help to you.

§ 30-15. When spouse entitled to allowance. Every surviving spouse of an intestate or of a testator, whether or not the surviving spouse has petitioned for an elective share, shall, unless the surviving spouse has forfeited the surviving spouse's right thereto, as provided by law, be entitled, out of the personal property of the deceased spouse, to an allowance of the value of sixty thousand dollars ($60,000) for the surviving spouse's support for one year after the death of the deceased spouse. Such allowance shall be exempt from any lien, by judgment or execution, acquired against the property of the deceased spouse, and shall, in cases of testacy, be charged against the share of the surviving spouse.

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