How Are Lapsed Gifts Handled Under North Carolina’s Anti-Lapse Statute When a Will’s Sole Beneficiary Predeceases the Testator?

1. Detailed Answer

When someone writes a will in North Carolina and names a sole beneficiary, they expect that person to take the gift or property at death. But if that beneficiary dies before the testator (the person who made the will), the gift “lapses.” A lapsed gift fails to pass under the will’s plain terms. North Carolina law provides a safety net through its anti-lapse statute, codified at N.C. Gen. Stat. § 31-42.

Here’s how it works step by step:

1. Identification of a Lapse. If the sole beneficiary named in the will dies before the testator, and the will does not name an alternate beneficiary, the gift lapses.
2. Does Anti-Lapse Apply? North Carolina’s anti-lapse statute applies only if the deceased beneficiary was a grandparent, a descendant of a grandparent, or the testator’s stepchild, and left surviving descendants. If the beneficiary falls into one of these categories and has living children or grandchildren, the gift does not fail. Instead, it passes to those descendants by representation.
3. Substitution by Representation. Under § 31-42(a), the descendants of the predeceased beneficiary take the gift in the same shares their parent would have. This process mirrors North Carolina’s rules of intestate succession for that gift portion.
4. No Anti-Lapse Coverage. If the predeceased beneficiary does not qualify under the statute—say, a friend or a more distant relative with no relationship to a grandparent—the gift fails completely. North Carolina treats it as part of the residuary estate. If there is no residuary beneficiary, the lapsed gift passes by intestacy under Chapter 29 of the North Carolina General Statutes.

Example: Alice’s will leaves her entire estate to her only niece, Beth. Beth dies before Alice but has two children. Because Beth is a descendant of Alice’s sibling and falls within the anti-lapse statute, Beth’s children inherit Alice’s estate by representation under N.C. Gen. Stat. § 31-42. Had Beth been a non-relative or died leaving no descendants, Alice’s estate would pass under any residuary clause or intestacy rules.

2. Key Points to Understand Anti-Lapse in North Carolina

• Lapse: Occurs when a beneficiary dies before the testator without a substitute in the will.
• Statutory Coverage: Applies only to grandparents, grandchildren, and stepchildren of the testator.
• Surviving Descendants: Requires at least one living child or grandchild of the predeceased beneficiary.
• By Representation: Descendants take in place of the deceased beneficiary, sharing equally.
• Residue and Intestacy: If anti-lapse does not apply, a lapsed gift falls into the residuary or passes under intestate succession (see Chapter 29).

Ready to Protect Your Estate Plan?

North Carolina’s anti-lapse rules can reshape your will if a beneficiary passes away first. At Pierce Law Group, we’ve guided countless clients through estate planning and probate administration. Let us review your documents and ensure your wishes carry out exactly as you intend.

Contact our attorneys today by emailing intake@piercelaw.com or calling us at (919) 341-7055. We handle every detail, so you can focus on what matters most.