If a beneficiary named in the will died before the person who made the will, can that beneficiary’s child inherit in their place? – North Carolina

Short Answer

Often, yes. In North Carolina, if a will beneficiary died before the person who made the will (the “testator”), the beneficiary’s children (or other “issue”) may take that beneficiary’s share under North Carolina’s anti-lapse statute—unless the will clearly says a different result (for example, “only if they survive me”). Whether the child inherits depends on the beneficiary’s relationship to the testator and the exact wording of the will.

Understanding the Problem

In North Carolina probate, a common question is what happens when a person named in a will dies before the testator: can that deceased beneficiary’s child step into the beneficiary’s place and receive the inheritance? The decision point is whether North Carolina law treats the gift as “saved” for the deceased beneficiary’s descendants, or whether the gift “fails” and moves somewhere else under the will’s backup plan. This issue comes up frequently when a family member is acting as executor and other relatives believe some beneficiaries are not being listed, notified, or included in distributions.

Apply the Law

Under North Carolina law, a gift in a will can “lapse” if the beneficiary does not survive the testator. North Carolina’s anti-lapse rule can prevent that result for certain family members by substituting the deceased beneficiary’s “issue” (generally, descendants such as children and grandchildren) to take the share the deceased beneficiary would have received. The key is that the anti-lapse statute applies only when the deceased beneficiary is within a specified family relationship to the testator, and it does not apply if the will shows a clear intent that the beneficiary must survive or that a different backup beneficiary should take.

Key Requirements

Covered family relationship: The deceased beneficiary must be the testator’s grandparent or a descendant of the testator’s grandparent (in plain terms, many close relatives such as siblings, nieces/nephews, aunts/uncles, and cousins can fall within this category).
Deceased beneficiary left “issue”: The deceased beneficiary must have living descendants who can take by substitution (most commonly, the beneficiary’s child or children).
No clear “contrary intent” in the will: If the will clearly requires survival (or clearly directs what happens if someone dies first), that wording can override the anti-lapse rule.

What the Statutes Say

N.C. Gen. Stat. § 31-42 (Failure of devises by lapse or otherwise; anti-lapse rule) – If a covered relative named in the will dies before the testator, that relative’s issue generally take the gift in that person’s place unless the will indicates a contrary intent; if anti-lapse does not apply, the gift typically passes under the residuary clause or by intestacy.

Analysis

Apply the Rule to the Facts: The facts describe a will and a revocable trust, with family concern that distributions and notices may not be happening correctly and that some heirs may be missing from filings. For the will portion of the estate, if a named beneficiary died before the testator and that beneficiary was within the family relationship covered by the anti-lapse statute, the beneficiary’s child(ren) may have the right to take that share—unless the will’s language requires survival or provides a different backup. If the executor’s filings omit those substitute beneficiaries, that can create real problems in administration and can affect who receives notice and distributions.

Process & Timing

Who files: The executor (personal representative). Where: The Clerk of Superior Court (Estates) in the North Carolina county where the estate is administered. What: Estate filings that identify heirs/devisees and support the administration (the specific forms and reports depend on the type of estate and local practice). When: Timing depends on the stage of administration; issues about a deceased beneficiary and substitute takers should be addressed early because they affect notices and distributions.
Determine whether anti-lapse applies: Review the will language for survival conditions and backup gifts, confirm the deceased beneficiary’s relationship to the testator, and confirm the deceased beneficiary’s living descendants.
Align distributions and notices with the correct takers: If a deceased beneficiary’s child takes by substitution, the executor should treat that child as the person entitled to that share for purposes of administration, including communications and distribution planning.

Exceptions & Pitfalls

Survivorship wording can change the result: Phrases like “if they survive me” or a detailed backup plan in the will can override the anti-lapse statute.
Not every beneficiary is covered: Anti-lapse protection depends on the beneficiary being within the statute’s covered family relationship to the testator. If the beneficiary is outside that group, the gift may pass to the residuary beneficiaries (or, if none, by intestacy) rather than to the beneficiary’s child.
Class gifts need careful handling: If the will leaves property to a group (for example, “to my children” or “to my siblings”), North Carolina’s anti-lapse rule can still substitute the deceased class member’s issue, but the share calculation must follow the statute’s approach.
Will vs. trust mismatch: The question is about a will, but the facts also involve a revocable trust. Trust distributions are controlled primarily by the trust document, and the trust may have different survivorship and substitution language than the will.
Missing people in filings: If substitute beneficiaries exist (such as a deceased beneficiary’s children) but are not identified, notices and distributions can be delayed or challenged later.

Conclusion

In North Carolina, when a will beneficiary dies before the testator, that beneficiary’s child can often inherit in the beneficiary’s place under the anti-lapse statute, as long as the beneficiary is within the covered family relationship and the will does not clearly require survival or direct a different result. The practical next step is to review the will’s exact survivorship and backup language and then confirm the deceased beneficiary’s descendants so the executor can list the correct takers with the Clerk of Superior Court.

Talk to a Probate Attorney

If a beneficiary died before the testator and there are concerns that the executor or trustee is not listing the right people, sending notices, or making distributions correctly, our firm has experienced attorneys who can help explain the rules and the timelines. Call us today at [919-341-7055]. For more context, see what can be done when an executor or trustee isn’t sharing information or listing all heirs and how the probate process works for an heir.

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.