Dec302025
Probate Q&A Series

What happens to real estate if a will leaves everything to someone who passed first and doesn’t name a backup beneficiary—do the heirs inherit and how are they identified? – North Carolina

Short Answer

In North Carolina, if a will leaves property to a person who died before the person who made the will, that gift usually fails unless North Carolina’s “anti-lapse” rule saves it. If anti-lapse does not apply and the will has no effective residuary (leftover) beneficiary, the property passes by intestate succession to the decedent’s heirs. Heirs are identified by the family relationships that exist at the decedent’s death (and certain survivorship rules), and the Clerk of Superior Court oversees the estate process that determines who those heirs are.

Understanding the Problem

In North Carolina probate, the key question is what happens when a will names a beneficiary who did not survive the person who made the will, and the will does not name an alternate beneficiary. The decision point is whether the failed gift is saved by a substitution rule or instead becomes “intestate property” that passes to heirs under North Carolina’s intestate succession laws. This issue often comes up when the main asset is real estate and the family needs to know who has title and who must sign documents to sell, refinance, or transfer the property.

Apply the Law

North Carolina has rules for (1) failed gifts in a will (often called “lapse”), (2) when a deceased beneficiary’s descendants can take instead (the anti-lapse rule), and (3) what happens when the will does not effectively dispose of property (intestacy or partial intestacy). If the property passes by intestacy, the heirs are determined under the Intestate Succession Act based on who survived the decedent and their relationship to the decedent. Real estate ownership questions can also turn on how title was held (for example, whether a deed created a survivorship interest or a tenancy in common).

Key Requirements

  • Whether anti-lapse applies: If the beneficiary who died first was within the family group covered by the anti-lapse statute (generally, certain close relatives), that beneficiary’s “issue” (descendants) may take the gift instead, unless the will shows a different intent.
  • Whether the will has an effective residuary clause: If a specific gift fails and anti-lapse does not save it, the failed gift usually falls into the residue; if there is no residuary beneficiary (or the residuary gift also fails), the property passes by intestacy.
  • Who the intestate heirs are at death: If property passes by intestacy, heirs are identified by applying North Carolina’s intestate succession rules to the family tree as it existed at the decedent’s death, including survivorship timing rules and parent-child status rules (such as adoption).

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a situation where the decedent died without a will, which means the real estate (to the extent it was owned without a survivorship feature) passes by intestate succession rather than under a will. If the decedent truly had no will, the “beneficiary died first” issue does not control; instead, the key questions become (1) what interest the decedent owned at death and (2) who qualifies as an heir under North Carolina’s intestate succession rules. If an older deed listed the decedent and a stepparent as co-owners, the deed language matters because a survivorship form of ownership could have caused the property to pass outside probate at the first death, while a tenancy in common would have left a share to pass through an estate.

Process & Timing

  1. Who files: A qualified person (often the closest family member) seeks appointment as the estate’s personal representative. Where: The Clerk of Superior Court (Estates) in the county with jurisdiction over the estate, and real-property filings may also be needed in the county where the land is located. What: An estate opening (application for letters) and, when needed, filings that identify heirs and describe the real property interest. When: As soon as practical after death, especially if the property needs to be insured, maintained, or transferred.
  2. Heir identification step: The estate process typically requires identifying the decedent’s heirs under the Intestate Succession Act. This usually involves collecting family information (marriages, divorces, children, adoptions, deaths) and confirming who survived the decedent under the applicable survivorship timing rules.
  3. Title and transfer step: Once the heirs (or devisees, if there is a valid will) are identified, the next steps depend on the title issue: whether the property is a probate asset, whether the personal representative needs authority to take control for administration, and what signatures or court approvals are required to transfer or sell.

Exceptions & Pitfalls

  • Anti-lapse can change the outcome in will cases: If there is a will and the deceased beneficiary was within the family group covered by the anti-lapse statute, that beneficiary’s descendants may take instead, unless the will clearly required survival or otherwise showed a different plan.
  • Survivorship timing rules: North Carolina uses survivorship timing rules (including a 120-hour concept in related provisions) to decide whether someone is treated as surviving for inheritance purposes. This can matter when deaths are close in time or simultaneous.
  • Deed language controls survivorship ownership: A deed that created a survivorship interest can cause real estate to pass outside the estate to the surviving co-owner, while a tenancy in common means the decedent’s share passes by will or intestacy. Confusing these is a common reason families end up with title problems.
  • Multiple parcels and mixed use: Adjacent parcels (such as a home parcel and a separate parcel used for another purpose) can have different deeds, different owners, or different survivorship language. Each parcel must be checked separately.
  • “No heirs” is rare: Escheat to the State happens only when there are no heirs under North Carolina law. Before that point, the estate must make a real effort to identify heirs.

Conclusion

In North Carolina, when a will leaves property to someone who died first and the will does not name a workable backup, the gift may be saved by the anti-lapse rule; otherwise it typically passes under the residuary clause, and if that fails, it passes by intestacy to the decedent’s heirs. Heirs are identified by applying North Carolina’s intestate succession rules to the family relationships that existed at the decedent’s death, using survivorship timing rules when needed. The next step is to open the estate with the Clerk of Superior Court and determine the decedent’s real-property interest and heirs.

Talk to a Probate Attorney

If there is a question about whether real estate passes under a will, by intestacy, or by survivorship deed language, our firm has experienced attorneys who can help explain the rules, identify the right heirs, and map out the steps to clear title. 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 your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Probate Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.