What happens in probate when a will names one beneficiary but no backup and that person isn’t alive? – North Carolina

Short Answer

Under North Carolina law, if a will names a single beneficiary who dies before the person who made the will, the gift may either pass to that beneficiary’s descendants, to any residuary beneficiary under the will, or, if neither applies, under North Carolina intestate succession laws. North Carolina’s anti-lapse statute can substitute certain relatives’ children or grandchildren in place of the deceased beneficiary unless the will clearly shows a different intent.

Understanding the Problem

The narrow issue is: under North Carolina probate law, what happens when a will leaves property to one beneficiary, names no alternate or backup, and that named person is not alive when the person who signed the will dies? This situation raises questions about whether the gift “lapses,” whether any relatives of the deceased beneficiary can step into that person’s shoes, and what role the intestacy rules play. The focus is on a single, failed gift provision in a valid North Carolina will, not on rewriting the entire estate plan.

Apply the Law

Under North Carolina law, a gift in a will to someone who dies before the person who made the will may be saved by the anti-lapse statute, redirected to any residuary clause, or treated as intestate property. The Clerk of Superior Court in the county where the decedent lived supervises the estate. In many cases, the practical “deadline” question is not a fixed date but whether any substitute takers (such as descendants of the deceased beneficiary) can be identified under the statute and intestacy rules.

Key Requirements

Relationship requirement for anti-lapse: The deceased beneficiary must be a grandparent of the person who made the will or a descendant of one of that person’s grandparents for the anti-lapse statute to apply.
Surviving issue who qualify as heirs: The deceased beneficiary must leave descendants who would qualify as that beneficiary’s heirs under North Carolina intestacy law so they can take in the beneficiary’s place.
No contrary intent in the will: The will must not clearly show that the person who made the will wanted the gift to fail if the beneficiary died, or wanted it to pass in some other way; otherwise the statute will not apply.

What the Statutes Say

N.C. Gen. Stat. § 31-42 (Failure of devises by lapse or otherwise) – Sets out North Carolina’s anti-lapse rules, when substitute takers step in, and where failed gifts go if the statute does not apply.
N.C. Gen. Stat. § 29-8 (Partial intestacy) – Explains that any part of an estate not disposed of by a will passes as intestate property.
N.C. Gen. Stat. § 29-13 (Descent and distribution upon intestacy) – Provides that intestate property is distributed under the intestate succession rules.

Analysis

Apply the Rule to the Facts: With no specific facts given, consider two simple variations. If a North Carolina will leaves “all my property to my sister” and the sister dies first, leaving children, and the will does not say the sister must survive or that any lapsed gift goes elsewhere, the anti-lapse statute likely directs the gift to the sister’s children. If instead the will leaves everything to an unrelated friend who dies first and there is no residuary clause, the anti-lapse statute does not apply, the gift fails, and that property passes under North Carolina intestate succession law.

Process & Timing

Who files: An interested party, usually the nominated executor or a family member. Where: The Clerk of Superior Court in the county where the decedent was domiciled in North Carolina. What: An application to probate the will and open an estate (using the standard probate forms provided by the North Carolina court system). When: Typically soon after death so that assets can be collected and deadlines for creditors and taxes can be met.
Once the estate is opened, the clerk reviews the will, identifies any deceased beneficiaries, and determines whether the anti-lapse statute applies or whether the gift instead falls into any residuary clause or passes as intestate property. This determination usually occurs during the inventory and first stages of administering the estate, often within the first several months.
At final accounting, the clerk reviews the proposed distribution reflecting whether the lapsed gift went to substitute takers under the statute, residuary beneficiaries, or heirs at law. The clerk then enters an order approving the final account and closing the estate, documenting who received the property from the failed gift.

Exceptions & Pitfalls

Wills that say a beneficiary takes only “if he survives me,” or that direct lapsed gifts to a particular person or fund, may show a “contrary intent” that prevents the anti-lapse statute from applying.
If the will has a residuary clause (for example, “all the rest, residue, and remainder of my estate to X”), a failed specific gift that is not saved by anti-lapse usually goes to the residuary beneficiary, not to intestate heirs.
When there are multiple residuary beneficiaries and one dies first with no substitute takers under the anti-lapse rules, that share often increases the shares of the surviving residuary beneficiaries rather than going by intestacy.
If there is no residuary clause and anti-lapse does not apply, the failed gift becomes intestate property, which can lead to unexpected heirs and more complicated family tracing.
Confusion can arise if relatives assume that the family of the deceased beneficiary always inherits; in North Carolina that only happens when the relationship and descendant requirements of the anti-lapse statute are met and the will does not clearly say otherwise.

Conclusion

In North Carolina, when a will names one beneficiary who is not alive at the maker’s death and no backup is listed, the outcome turns on three points: whether the beneficiary is a grandparent or a descendant of a grandparent of the maker, whether that beneficiary left qualifying descendants, and whether the will shows a different intent. If the anti-lapse statute does not apply, the failed gift usually passes under any residuary clause, and if none exists, as intestate property under North Carolina law.

Talk to a Probate Attorney

If an estate involves a will that names a beneficiary who died first and no backup, our firm has experienced probate attorneys who can help clarify how the anti-lapse and intestacy rules apply. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for any specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If there is a deadline, act promptly and speak with a licensed North Carolina attorney.