Bill Text: NC S843 | 2011-2012 | Regular Session | Amended
Bill Title: Intestate Property/Child's Year's Allowance
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-05-22 - Ref to Judiciary I. If fav, re-ref to Finance [S843 Detail]
Download: North_Carolina-2011-S843-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
S 1
SENATE BILL 843*
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Short Title: Intestate Property/Child's Year's Allowance. |
(Public) |
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Sponsors: |
Senator Hartsell. |
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Referred to: |
Judiciary I. |
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May 22, 2012
A BILL TO BE ENTITLED
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.
