Jan302026
Probate Q&A Series

How do I figure out what share my spouse was entitled to from a relative’s estate when some other heirs died and their shares passed to their children? – North Carolina

Short Answer

In North Carolina, the starting point is to identify the “root” heirs who were alive when the relative died (or who legally survived long enough to inherit). If one of those heirs died before the relative (or is treated as having predeceased), that heir’s descendants usually step into that heir’s place, and the share is calculated by counting the surviving heirs at that generation plus the deceased heirs at that generation who left living descendants. Once the deceased spouse’s share is identified, that expected inheritance is an asset of the deceased spouse’s estate and may be affected by creditor claims and a properly filed year’s allowance.

Understanding the Problem

In North Carolina probate, the key question is: “What fraction of a relative’s estate would the deceased spouse have received under the relative’s will or intestate succession when some other heirs died and their children took instead?” This comes up when a surviving spouse opens the deceased spouse’s estate and needs to estimate what money should flow into that estate from the relative’s estate. It also matters when deciding whether to pursue a year’s allowance in the deceased spouse’s estate to protect certain assets from the deceased spouse’s creditors.

Apply the Law

When a North Carolina decedent dies without a will (intestate), North Carolina’s Intestate Succession Act determines who inherits and how shares are calculated. For shares within a “class” (like children and descendants, or siblings and descendants), North Carolina uses a representation approach: the estate is divided into shares at the closest generation with living takers, counting deceased members of that generation who left living descendants, and then the descendants divide the deceased person’s share at the next generation using the same counting method. The clerk of superior court (estate division) is the main forum for probate administration and many inheritance disputes.

Key Requirements

  • Identify the correct “relative’s estate” rule: Confirm whether the relative left a will (the will controls) or died intestate (Chapter 29 controls who inherits).
  • Determine who is treated as having survived the relative: Shares depend on who legally “survived” the relative at death; if an heir is treated as having predeceased, that heir is skipped and the heir’s descendants may take by representation.
  • Count shares at the right generation and then repeat down the family tree: For children/descendants (and for siblings/descendants), North Carolina calculates shares by counting (1) living people at that generation plus (2) deceased people at that generation who left living descendants, then dividing and repeating the process for the descendants’ level.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the surviving spouse has opened the deceased spouse’s North Carolina estate, and an inheritance is expected from a relative’s estate. The first step is to calculate the deceased spouse’s fraction of the relative’s estate using the “count-and-divide” method in the correct heir class, treating deceased heirs with living descendants as creating a share that passes down to their children. Once that fraction is known, the expected distribution is an asset of the deceased spouse’s estate, which is relevant because creditor debts (including medical bills) may be paid from estate assets unless a year’s allowance is properly claimed and awarded.

Mini-hypo 1 (siblings and descendants): A relative dies intestate with three siblings in that class: one sibling is alive, and two siblings died earlier but each left children. The estate is divided into three shares at the sibling level (one for the living sibling, and one for each deceased sibling who left descendants). The deceased sibling’s children then divide that deceased sibling’s share among themselves under the same approach.

Mini-hypo 2 (children and descendants): A relative dies intestate with two children: one child is alive, and one child died earlier leaving three grandchildren. The estate is divided into two shares at the child level. The living child takes one share, and the three grandchildren split the deceased child’s share.

Process & Timing

  1. Who gathers the information: The personal representative (executor/administrator) of the deceased spouse’s estate or counsel. Where: The relative’s estate file (clerk of superior court, estate division, in the county where the relative’s estate is administered) and the deceased spouse’s estate file in North Carolina. What: The relative’s will (if any), the relative’s application/petition for probate, and the relative’s list of heirs/next of kin; plus death certificates and family tree details showing who died and who their children are. When: As early as possible, because the deceased spouse’s estate administration and creditor issues depend on what assets are expected to come in.
  2. Calculate the share: Identify the correct heir class (descendants vs. parents vs. siblings, etc.), then apply the share-counting rules in N.C. Gen. Stat. § 29-16. If the relative had a will, apply the will’s distribution language and any “anti-lapse” or substitute-taker provisions in the will (if present) rather than the intestacy formulas.
  3. Coordinate with the deceased spouse’s estate strategy: If the surviving spouse is considering a year’s allowance to keep assets from being used to pay the deceased spouse’s creditors, confirm eligibility and file the verified petition in the deceased spouse’s estate with the clerk of superior court. If a personal representative has been appointed for the deceased spouse’s estate, the year’s allowance claim generally must be filed within six months after letters testamentary/administration are issued.

Exceptions & Pitfalls

  • Will controls (and may override “kids take the parent’s share”): If the relative left a will, the will’s wording may change what happens when a beneficiary dies (for example, naming alternate beneficiaries or requiring survival for a certain period). Intestacy share rules apply only if there is no will (or for property not covered by the will).
  • Survivorship timing can change who counts as an heir: North Carolina law has statutory rules for determining whether someone is treated as having predeceased. That determination affects whether the person is counted as a share-creating heir or skipped in favor of descendants.
  • Counting the wrong “generation” leads to the wrong fraction: A common mistake is assuming “each family branch gets the deceased person’s share” without doing the statute’s step-by-step counting at each level. North Carolina’s method can produce results that look different from a simple “branch share” assumption.
  • Confusing the relative’s estate with the deceased spouse’s estate: The question here is the deceased spouse’s share of the relative’s estate. But the year’s allowance is filed in the deceased spouse’s estate and is about creditor pressure in that estate. Keeping those two files and timelines separate avoids missed deadlines.
  • Creditor strategy requires careful sequencing: Even if an inheritance is expected, the personal representative still must follow North Carolina estate administration rules for notice, claims, and distributions. A year’s allowance can have strong protections, but it must be properly claimed and awarded.

For more background on how a year’s allowance works in this setting, see how a surviving spouse’s year’s allowance works.

Conclusion

In North Carolina, figuring out a deceased spouse’s share of a relative’s estate usually starts by identifying the correct class of heirs and then applying the share-counting rules that include deceased heirs who left living descendants, with descendants taking by representation under N.C. Gen. Stat. § 29-16. That calculated share is typically an asset expected to come into the deceased spouse’s estate, which matters when creditor debts exist. If a year’s allowance is part of the plan, the next step is to file a verified petition with the clerk of superior court, generally within six months after letters are issued if a personal representative has been appointed.

Talk to a Probate Attorney

If a deceased spouse’s estate is expecting an inheritance and creditor debts are also in the picture, our firm has experienced attorneys who can help clarify the share calculation and the deadlines that affect a year’s allowance. 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.