Effective March 1, 2024, there were several updates and amendments to North Carolina law regarding child allowances for decedents who died on or after that date. The amount was increased from $5,000 to $10,000. The age was set at 21, regardless of whether the child was a student. These changes were well advertised and warmly welcomed. However, one additional change to the child allowance has seemed to go unnoticed: the rewritten version of N.C.G.S. § 30-17.
Under the previous version of N.C.G.S. § 30-17, a personal representative was under a duty to assign a child’s allowance if an eligible child was entitled to such allowance. Many times the personal representative was the parent of the child, so the filing was done without much fanfare. Sometimes, however, someone other than the parent was serving as personal representative, and that person or entity was under a statutory duty to assign the allowance. Presumably the reasoning was that the child could not file for themselves to protect their own rights, and the personal representative was in the best position to know if there was an eligible child to receive such allowance.
That duty has now seemingly been eliminated. The statute no longer requires the personal representative to act. Instead, an eligible person such as a parent, guardian, or person with whom the child resides may file a verified petition with the clerk of superior court. But there is no statutory language imposing a duty on them to do so. In other words, they are permitted to file, but they are not required.
That raises an important question: what happens if no one files? Suppose a parent or guardian does not know the child is entitled to the allowance, or simply does not pursue it. Can the child later sue the parent or guardian for not protecting their right? Probably not, at least not under the statute, because there is no explicit duty imposed on the parent or guardian. By contrast, under the old law, a child arguably could have brought a claim against the personal representative for failing to carry out a statutory duty.
Previously, the answer to who is responsible was clearer. Now, it is not so sure. The margin case matters.