Feb232026
Probate Q&A Series

How can I tell whether a will’s wording means the gift goes only to the named beneficiaries or also to their heirs if they later pass away? – North Carolina

Short Answer

In North Carolina, the key question is usually whether the will requires the named beneficiary to survive the person who made the will, and what the will says should happen if that beneficiary does not. If the will is silent and a beneficiary dies before the testator, North Carolina’s anti-lapse statute often sends that beneficiary’s share to the beneficiary’s descendants (not to “heirs” generally). If the beneficiary survives the testator but dies later, the gift typically becomes part of the beneficiary’s own estate unless the will created a trust or a life estate instead of an outright gift.

Understanding the Problem

In a North Carolina probate case, a common question is whether a will that leaves a home and other property “equally” to two named people means the gift is limited to those two beneficiaries only, or whether it also includes their “heirs” if one beneficiary later dies. The decision point is timing: did the beneficiary die before the will-maker died, or did the beneficiary survive the will-maker and die afterward. That timing, plus any survivorship or substitute-beneficiary wording in the will, usually controls how the Clerk of Superior Court and the estate’s personal representative determine who takes the share.

Apply the Law

North Carolina courts and clerks start with the will’s plain language. If a beneficiary dies before the testator, the gift may “lapse” unless a statute or the will provides a substitute taker. North Carolina’s anti-lapse statute can “save” many gifts to family members by sending the deceased beneficiary’s share to that beneficiary’s descendants, unless the will shows a different plan. Separately, some wills use words like “heirs” in ways that can change who is included, especially when the will refers to the “heirs” of a living person.

Key Requirements

  • When the beneficiary died (before vs. after the testator): If the beneficiary died before the testator, the anti-lapse/lapse rules matter. If the beneficiary survived the testator, the gift usually vested and then passes through the beneficiary’s own estate when that beneficiary later dies.
  • Whether the will requires survivorship or names substitutes: Phrases like “if they survive me,” “to the survivors,” or “if not living, then to…” can override the default anti-lapse result.
  • Whether “heirs” is being used as a label for a group: In some situations, North Carolina law treats a gift “to the heirs of a living person” as meaning that person’s “children,” unless the will clearly shows a different intent.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a will that leaves the home and other property to two named beneficiaries equally. If both named beneficiaries survived the parent who made the will, each beneficiary’s share typically became that beneficiary’s property at the parent’s death, and if one beneficiary later dies, that share usually passes under that beneficiary’s own estate plan (or by intestacy if no will). If a named beneficiary died before the parent who made the will, then the will’s survivorship wording (if any) and North Carolina’s anti-lapse statute become the main tools for deciding whether that deceased beneficiary’s descendants take the share or whether the share shifts to the other beneficiary or the residue.

Process & Timing

  1. Who files: The nominated executor (if there is a will) or an eligible administrator (if there is no will). Where: The Estates Division of the Clerk of Superior Court in the North Carolina county where the decedent lived (and sometimes where real estate is located). What: The will (if any) and an application to open the estate and qualify the personal representative. When: As soon as practical after death, especially if assets must be secured or bills must be paid.
  2. Identify who takes under the will: The personal representative reviews the exact gift language (for example, “to A and B,” “to A and B or the survivor,” “to A and B, per stirpes,” or “to A, and if A is not living then to…”), and confirms whether any beneficiary failed to survive the decedent (including any 120-hour survivorship rule if the will does not override it).
  3. Document the distribution path: If a beneficiary died before the testator, the personal representative determines whether anti-lapse applies and, if so, identifies the substitute takers (typically the deceased beneficiary’s descendants). If a beneficiary survived the testator but died later, the personal representative generally treats that share as belonging to the deceased beneficiary’s estate and coordinates distribution with that beneficiary’s estate administration if needed.

Exceptions & Pitfalls

  • “Heirs” does not always mean “whoever inherits later”: In everyday speech, “heirs” can sound like “family.” In will interpretation, it can be a technical term, and in some situations North Carolina law reads “heirs of a living person” as “children,” unless the will clearly points another way.
  • Anti-lapse is not automatic if the will says otherwise: If the will clearly directs what happens when a gift fails (for example, “any lapsed gifts go to the residue” or “to the survivors only”), that language can defeat the anti-lapse result.
  • Class gifts vs. named gifts: A gift “to my children” (a class) can operate differently from a gift to “A and B” (named individuals), especially when one person dies before the testator and the will has survivorship language.
  • Vesting vs. life estate/trust planning: If the will gave an outright share, it usually becomes the beneficiary’s property at the testator’s death. But if the will created a life estate, a trust, or a condition, the beneficiary may not have owned a transferable share that passes through the beneficiary’s estate.

For more background on how North Carolina handles a beneficiary who dies before the will-maker, see beneficiary predeceases the will-maker and lapsed gifts under a will.

Conclusion

In North Carolina, whether a will’s wording limits a gift to the named beneficiaries or carries it to their family usually turns on survivorship language and the timing of death. If a beneficiary dies before the testator, N.C. Gen. Stat. § 31-42 often substitutes the beneficiary’s descendants unless the will says otherwise. A practical next step is to file the will with the Clerk of Superior Court and have the personal representative compare the exact gift clause against the anti-lapse and survivorship rules.

Talk to a Probate Attorney

If you’re dealing with a will that leaves property to named beneficiaries and there is a question about what happens if one of them dies, our firm has experienced attorneys who can help explain the likely distribution path and the timelines in the Clerk of Superior Court. 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.