By Attorney Kelly Jesson
North Carolina has a procedure whereby the surviving spouse can claim an “allowance” when their spouse dies, allowing them to obtain, free and clear of any creditor claims or expenses, their deceased spouse’s singularly owned personal property up to $60,000 less any liens or encumbrances. Any jointly owned property will automatically become the surviving spouse’s and is excluded from the $60,000 cap. If a deceased spouse had real estate only in his name, the surviving spouse could not use the spousal allowance to get the real estate and would then have to resort to the probate process. The spousal allowance law applies whether or not the deceased spouse had a will.
The benefits of the spouse allowance statute are clear. Example: you and your deceased wife own a house jointly and own joint bank accounts, but she had a car in only her name worth $30,000 and a stock account in only her name worth $20,000. She also had a $20,000 Macy’s credit card bill in only her name. You can go up to the courthouse with proof of her death and proof of your marriage, fill out a fairly simple form, pay $20, and leave being able to transfer those two items to you directly. There is no need for a costly and time-consuming probate proceeding. Additionally, Macy’s will not be paid.
It is very important to note that a surviving spouse only has one year to file a claim for the allowance. There are no exceptions to this rule. If the deadline had been missed in the above example, the stock would likely have to be sold to pay the Macy’s debt. Also, there is a $5,000 child’s allowance available for children under the age of 18 or certain children over age 18. Finally, government entities may not recognize the state statute, so debts like taxes may still be owed.
If you or a loved one need assistance with the probate process, please give Jesson & Rains a call!
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Kelly Rains Jesson