Jan92026
Probate Q&A Series

What happens if a will leaves property to relatives who died before the person who made the will? – North Carolina

Short Answer

In North Carolina, a gift in a will to a relative who died before the person who made the will usually does not automatically fail. If the deceased beneficiary was a grandparent of the person who made the will, or a descendant of a grandparent (for example, a sibling, niece/nephew, aunt/uncle, or cousin), North Carolina’s “anti-lapse” rule often sends that gift to the deceased beneficiary’s descendants instead. If the anti-lapse rule does not apply (or the will says it should not), the gift typically goes to the will’s “residue,” and if there is no effective residue, it can pass under intestacy rules.

Understanding the Problem

In North Carolina probate, what happens when a will names a beneficiary who died before the person who made the will depends on whether North Carolina law substitutes someone else to take that gift, or whether the gift fails and gets redirected. The single decision point is whether the deceased beneficiary falls within the family relationships covered by North Carolina’s anti-lapse rule and whether the will shows a different intent (such as requiring survival). This question often comes up when a will leaves a home or other property to relatives, but some of those relatives died earlier.

Apply the Law

North Carolina law addresses “lapsed” gifts (gifts that would fail because the beneficiary did not survive the person who made the will). The main forum for resolving who takes under a will is the estate administration opened with the Clerk of Superior Court in the county where the decedent lived at death. As a baseline, North Carolina generally treats a beneficiary who does not survive the decedent as having predeceased the decedent, and a statutory 120-hour survivorship rule can matter in close-timing deaths unless the will changes that rule.

Key Requirements

  • Relationship covered by the anti-lapse rule: The deceased beneficiary must be a grandparent of the decedent or a descendant of a grandparent of the decedent (common examples include siblings, nieces/nephews, aunts/uncles, and cousins).
  • Descendants of the deceased beneficiary: If the anti-lapse rule applies, the deceased beneficiary’s “issue” (descendants) generally take the share the deceased beneficiary would have received.
  • No contrary intent in the will: The will can override the default rule (for example, by stating a beneficiary must survive, or by naming an alternate taker if the first beneficiary dies).

What the Statutes Say

Analysis

Apply the Rule to the Facts: The will includes gifts to relatives who died before the decedent. Under North Carolina’s anti-lapse statute, if those deceased relatives were within the covered family relationships (such as a sibling, niece/nephew, aunt/uncle, or cousin) and they left surviving descendants, those descendants may take the deceased relative’s share unless the will clearly requires survival or names a different backup beneficiary. If a particular deceased beneficiary is not within the covered relationships, or left no descendants, that gift usually shifts to the residuary clause; if there is no effective residuary clause, it may pass by intestacy.

Process & Timing

  1. Who files: The person named as executor in the will (or another qualified person if no executor can serve). Where: The Clerk of Superior Court in the North Carolina county where the decedent lived at death. What: An estate opening/probate filing to admit the will and qualify a personal representative, plus supporting documents required by the clerk. When: As soon as reasonably possible after death, especially if assets must be collected, bills must be handled, or real property must be managed.
  2. Identify the “lapse” issues: The personal representative reviews each gift where the named beneficiary died first, checks whether the will has a survivorship requirement or alternate beneficiary, and then applies the anti-lapse rule (including whether the deceased beneficiary left descendants who can substitute in).
  3. Distribute through the correct channel: Once the correct takers are identified, the personal representative distributes under the will (including any substituted takers), under the residuary clause, or under intestacy for any portion not effectively disposed of.

Exceptions & Pitfalls

  • The will can override the default rule: Language like “if they survive me” or “to A, but if A does not survive, then to B” can defeat the anti-lapse substitution and redirect the gift.
  • “Residuary” gifts behave differently than many people expect: If a non-residue gift fails, it commonly falls into the residue; if a residuary beneficiary’s share fails, it can increase the shares of other residuary beneficiaries (and may still be subject to anti-lapse substitution if the relationship requirements are met).
  • Not everything is controlled by the will: Joint accounts, beneficiary-designated life insurance, and some retirement or pension-related payments may pass outside the will depending on how they are titled or designated. Separating “probate assets” from “non-probate assets” is often necessary before deciding what the lapse rules even apply to.

Conclusion

In North Carolina, when a will leaves property to a relative who died before the person who made the will, the gift often goes to that relative’s descendants under the anti-lapse statute—unless the will clearly requires survival or provides a different backup plan. If the anti-lapse rule does not apply, the gift usually passes to the residuary clause, and if there is no effective residuary disposition, it can pass by intestacy. The next step is to open the estate with the Clerk of Superior Court and identify each predeceased beneficiary and any substitute takers.

Talk to a Probate Attorney

If a North Carolina will includes gifts to relatives who died before the person who made the will, a probate review can clarify whether the anti-lapse rule applies, whether the residuary clause controls, and what paperwork is needed to distribute the home and other assets correctly. Our firm has experienced attorneys who can help you understand your options and timelines. 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: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.