Bill Text: NC H1069 | 2011-2012 | Regular Session | Chaptered
Bill Title: Intestate Property/Child's Year's Allowance
Spectrum: Slight Partisan Bill (Democrat 3-1)
Status: (Passed) 2012-06-26 - Ch. SL 2012-71 [H1069 Detail]
Download: North_Carolina-2011-H1069-Chaptered.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
SESSION LAW 2012-71
HOUSE BILL 1069
AN ACT TO INCREASE THE MINIMUM AMOUNT OF INTESTATE PERSONAL PROPERTY PASSING TO THE SURVIVING SPOUSE AND THE AMOUNT OF THE YEAR'S ALLOWANCE FROM A DECEDENT'S ESTATE FOR A SURVIVING CHILD, TO REINSERT ERRONEOUSLY REMOVED REFERENCES TO A CHILD'S "NEXT FRIEND" IN THE STATUTES RELATING TO A CHILD'S YEAR'S ALLOWANCE, AND TO SPECIFY THAT THE CHILD'S YEAR'S ALLOWANCE MAY BE PAID TO A WIDOWER ON THE CHILD'S BEHALF AS WELL AS TO A WIDOW, AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 29‑14(b) reads as rewritten:
"(b) Personal Property. – The share of the surviving spouse in the personal property is:
(1) If the intestate is
survived by only one child or by any lineal descendant of only one deceased
child, and the net personal property does not exceed thirty thousand dollars
($30,000)sixty thousand dollars ($60,000) in value, all of the
personal property; if the net personal property exceeds thirty thousand
dollars ($30,000)sixty thousand dollars ($60,000) in value, the sum
of thirty thousand dollars ($30,000)sixty thousand dollars ($60,000)
plus one half of the balance of the personal property;
(2) If the intestate is
survived by two or more children, or by one child and any lineal descendant of
one or more deceased children, or by lineal descendants of two or more deceased
children, and the net personal property does not exceed thirty thousand
dollars ($30,000)sixty thousand dollars ($60,000) in value, all of
the personal property; if the net personal property exceeds thirty thousand
dollars ($30,000)sixty thousand dollars ($60,000) in value, the sum
of thirty thousand dollars ($30,000)sixty thousand dollars ($60,000)
plus one third of the balance of the personal property;
(3) If the intestate is not survived
by a child, children, or any lineal descendant of a deceased child or children,
but is survived by one or more parents, and the net personal property does not
exceed fifty thousand dollars ($50,000)one hundred thousand dollars
($100,000) in value, all of the personal property; if the net personal
property exceeds fifty thousand dollars ($50,000)one hundred thousand
dollars ($100,000) in value, the sum of fifty thousand dollars ($50,000)one
hundred thousand dollars ($100,000) plus one half of the balance of the
personal property;
(4) If the intestate is not survived by a child, children, or any lineal descendant of a deceased child or children, or by a parent, all of the personal property."
SECTION 2.(a) G.S. 30‑17 reads as rewritten:
"§ 30‑17. When children entitled to an allowance.
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
two thousand dollars ($2,000) for the child's support for the year next ensuing
the death of such the parent. Such The allowance
shall be in addition to the child's share of the deceased parent's estate and
shall be exempt from any lien by judgment or execution against the property of such
the deceased parent. The personal representative of the deceased
parent shall, within one year after the parent's death, assign to every such
child the allowance herein provided for; but if there is no personal
representative or if the personal representative fails or refuses to act within
10 days after written request application by a guardian or
next friend on behalf of such the child, the allowance may be
assigned by a magistrate or clerk of court upon application of said
guardian.application.
If the child resides with the widow
surviving spouse of the deceased parent at the time such the
allowance is paid, the allowance shall be paid to said widowthe
surviving spouse for the benefit of said the child. If the
child resides with its surviving parent who is other than the widow surviving
spouse of the deceased parent, such the allowance shall be
paid to said the surviving parent for the use and benefit of such
child, regardless of whether the deceased died testate or intestate or whether
the widow dissented from the will.the child. The payment shall be made
regardless of whether the deceased died testate or intestate or whether the
surviving spouse petitioned for an elective share under Article 1A of Chapter
30 of the General Statutes. Provided, however, the allowance shall not be
available to an illegitimate child of a deceased father, unless such the
deceased father shall havehas recognized the paternity of such
the illegitimate child by deed, will will, or other
paper‑writing. If the child does not reside with a surviving spouse or
a surviving parent when the allowance is paid, the allowance shall be paid
to the child's general guardian, if any, and if none, to the clerk of the
superior court who shall receive and disburse same the allowance for
the benefit of such the child."
SECTION 2.(b) G.S. 30‑20 reads as rewritten:
"§ 30‑20. Procedure for assignment.
Upon the application of the
surviving spouse, a child by the child's guardian,guardian or next
friend, or the personal representative of the deceased, the clerk of
superior court of the county in which the deceased resided may assign the
inquiry to a magistrate of the county. The clerk of court, or magistrate upon
assignment, shall ascertain the person or persons entitled to an allowance
according to the provisions of this Article, and determine the money or other
personal property of the estate, and pay over to or assign to the surviving
spouse and to the children, if any, so much thereof as they shall be entitled
to as provided in this Article. Any deficiencies shall be made up from any of
the personal property of the deceased, and if the personal property of the
estate shall be insufficient to satisfy such the allowance, the
clerk of the superior court shall enter judgment against the personal
representative for the amount of such the deficiency, to be paid
when a sufficiency of such assets shall come into the personal representative's
hands."
SECTION 2.(c) G.S. 30-21 reads as rewritten:
"§ 30‑21. Report of clerk or magistrate.
The clerk of court, or magistrate
upon assignment, shall make and sign three lists of the money or other personal
property assigned to each person, stating their quantity and value, and the
deficiency to be paid by the personal representative. Where the allowance is to
the surviving spouse, one of these lists shall be delivered to the surviving
spouse. Where the allowance is to a child, one of these lists shall be
delivered to the surviving parent with whom the child is living; or to the
child's guardian or next friend if the child is not living with said the
surviving parent; or to the child if said the child is not
living with the surviving parent and has no guardian.guardian or next
friend. One list shall be delivered to the personal representative. One
list shall be returned by the magistrate or clerk, within 20 days after the
assignment, to the superior court of the county in which administration was
granted or the will probated, and the clerk shall file and record the same,list,
together with any judgment entered pursuant to G.S. 30‑20."
SECTION 2.(d) G.S. 30‑23 reads as rewritten:
"§ 30‑23. Right of appeal.
The personal representative, or
the surviving spouse, or child by a the child's guardian,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."
SECTION 2.(e) G.S. 30‑27 reads as rewritten:
"§ 30‑27. Surviving spouse or child may apply to superior court.
In addition to any support otherwise
assigned to the surviving spouse or child as above prescribed,under
this Article, without application to the personal representative, the
surviving spouse, or the child through the child's guardian or next friend may,
after the date specified in the general notice to creditors as provided for in G.S. 28A‑14‑1(a),
and within one year after the decedent's death, apply to the superior court of
the county in which administration was granted or the will probated to have a
year's support assigned at an amount other than prescribed in G.S. 30‑15
and G.S. 30‑17."
SECTION 3. G.S. 30‑17, as amended by Section 2(a) of this act, reads as rewritten:
"§ 30‑17. When children entitled to an allowance.
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
two thousand dollars ($2,000) five thousand dollars ($5,000) for
the child's support for the year next ensuing the death of the parent. The
allowance shall be in addition to the child's share of the deceased parent's
estate and shall be exempt from any lien by judgment or execution against the
property of the deceased parent. The personal representative of the deceased
parent shall, within one year after the parent's death, assign to every such
child the allowance herein provided for; but if there is no personal
representative or if the personal representative fails or refuses to act within
10 days after written application by a guardian or next friend on behalf of the
child, the allowance may be assigned by a magistrate or clerk of court upon application.
If the child resides with the surviving spouse of the deceased parent at the time the allowance is paid, the allowance shall be paid to the surviving spouse for the benefit of the child. If the child resides with its surviving parent who is other than the surviving spouse of the deceased parent, the allowance shall be paid to the surviving parent for the use and benefit of the child. The payment shall be made regardless of whether the deceased died testate or intestate or whether the surviving spouse petitioned for an elective share under Article 1A of Chapter 30 of the General Statutes. Provided, however, the allowance shall not be available to an illegitimate child of a deceased father, unless the deceased father has recognized the paternity of the illegitimate child by deed, will, or other paper‑writing. If the child does not reside with a surviving spouse or a surviving parent when the allowance is paid, the allowance shall be paid to the child's general guardian, if any, and if none, to the clerk of the superior court who shall receive and disburse the allowance for the benefit of the child."
SECTION 4. Section 2 of this act is effective when this act becomes law. The remainder of this act becomes effective January 1, 2013, and applies to estates of persons dying on or after that date.
In the General Assembly read three times and ratified this the 20th day of June, 2012.
s/ Walter H. Dalton
President of the Senate
s/ Thom Tillis
Speaker of the House of Representatives
s/ Beverly E. Perdue
Governor
Approved 4:13 p.m. this 26th day of June, 2012
