North Carolina Small Estates: Not Every Estate Has to be Probated

Generally speaking, there are three types of small estates. They’re generally called the “spousal allowance” (formal name – “petition for year’s allowance”), the “collection by affidavit” (formal name – “affidavit for collection of personal property”), and then there’s “summary administration”. Each of those allows for essentially an expedited probate process or a non-probate based estate resolution. They apply in different ways, at different asset thresholds, and for different people.

The Petition for Year’s Allowance (“Spousal Allowance”)

The Petition for Year’s Allowance is something that is going to be unique to the surviving spouse of a deceased individual or their minor kids. The most common filing that we make in a small estate manner or for the resolution of an estate is the Spousal Allowance. Essentially what it allows is for the surviving spouse to petition to the court through a two page pleading (usually costs about $8 to file, plus the cost of filing the will if needed) to essentially move title to personal property from a deceased spouses name to their surviving spouse’s name. It’s often utilized to transfer car titles or individual bank accounts that have the deceased’s name on it.

It essentially entitles the surviving spouse to the first $60,000 of personal property from the deceased spouses estate. It’s not guaranteeing $60,000, but it’s up to $60,000. Sometimes there will only be $10,000 or $20,000. If that is the case, then the surviving spouse will get what’s called a deficiency judgment against the estate. If there are any other assets that may be found later, instead of those assets potentially going to creditors, the spouse becomes the primary creditor against the estate and is entitled to withdraw or transfer those assets against the deficiency judgment at that time. This creates additional protection for the surviving spouse against creditor claims of the deceased spouse. The Spousal Allowance is probably the most common and most important small estate filing in North Carolina.

The Collection By Affidavit (or Affidavit for Collection of Personal Property)

The Collection by Affidavit is probably the second most popular small estate filing, at least for our firm, in the North Carolina probate system. It’s essentially a small estate filing for non-spouses (or sometimes for spouses if the estate is worth more than $60,000 but less than $80,000) if the estate is at or worth less than $20,000. It essentially allows for the crossing of T’s and dotting of I’s for miscellaneous personal property that weren’t beneficiary-designated, could not be designated, or if the property was just in the name of the deceased when they passed and could not otherwise be transferred. If the personal property assets of the deceased are worth less than $20,000, the affidavit is generally a two-page filing and $120 filing fee that expedites the standard probate process. The process is more formal than the spousal allowance, but not as formal as the probate process. There is a final affidavit of disbursement and distributions that’s required within 90 days of the initial affidavit, but it doesn’t require a Notice to Creditors.

The Summary Administration (Spouse’s Only)

Summary Administration is a procedure that’s available to a surviving spouse if they are the sole beneficiary of the estate of the deceased spouse. That could be by virtue of intestacy or according to the terms of the will. Summary Administration essentially allows a surviving spouse to have all of the property of the deceased spouse’s estate transferred to them, outside of the probate process, as long as they also take the liabilities of the estate. So it’s basically take it all: the good and the bad. It allows for the avoidance of a full probate and the more formal procedures that probate would entail.

If a loved one recently passed and you’re facing a small estate matter and you just don’t know where to begin, we’d be happy to help. Click here to get the process started.