Short Answer

In North Carolina, if a beneficiary named in your will dies before you, the gift either passes to that person’s descendants under the anti-lapse statute or to the alternates you named—depending on your will’s wording. If your will says the beneficiary must survive you or names contingent beneficiaries to take if they do not, that “contrary intent” usually controls. A 120-hour survival rule and special rules for residuary gifts may also apply.

Understanding the Problem

You want to know, under North Carolina law, what happens if your will leaves everything to your child, but your child does not survive you—especially since you’ve named your niece and nephew as equal contingent beneficiaries. This question focuses on who inherits and in what order if the primary beneficiary dies first.

Apply the Law

North Carolina has default rules for “lapse” (when a beneficiary dies before the testator) and a statute that can redirect the gift to the deceased beneficiary’s descendants (the anti-lapse statute). Those defaults yield to clear instructions in your will, such as requiring survival or naming contingent beneficiaries. North Carolina also applies a 120-hour survival requirement unless the will says otherwise. Probate occurs with the Clerk of Superior Court, and failed gifts may flow into the residuary clause or, if that fails, by intestacy.

Key Requirements

• Clear survivorship or alternate-taker language controls: If your will requires a beneficiary to survive you or names who takes if they do not, that direction generally overrides anti-lapse.
• Anti-lapse applies only to certain relatives: If a predeceased beneficiary is your grandparent or a descendant of your grandparents (e.g., your child, sibling, niece/nephew) and leaves descendants who would be your heirs, those descendants step into the beneficiary’s place—unless your will shows a contrary intent.
• Residuary safety net: If a gift still fails, it passes under your residuary clause. If a residuary beneficiary predeceases and there are other residuary beneficiaries, the surviving residuary takers share. If none, the assets pass by intestacy.
• 120-hour rule: A beneficiary must survive you by at least 120 hours (five days) unless your will provides a different standard; otherwise, they are treated as having predeceased you.
• Non-probate assets are different: Property held with rights of survivorship (like certain joint accounts or jointly titled property) passes outside the will, so lapse and anti-lapse rules do not govern those assets.

What the Statutes Say

• N.C. Gen. Stat. § 31-42 (Anti-lapse; failed devises) – Redirects gifts when certain relatives of the testator predecease, unless the will shows a contrary intent.
• N.C. Gen. Stat. § 28A-24-2 (120-hour survivorship rule) – Requires survival by at least 120 hours unless the governing instrument provides otherwise.
• N.C. Gen. Stat. § 28A-24-6 (When the 120-hour rule does not apply) – Lists exceptions, including where the will or other instrument sets a different standard.
• N.C. Gen. Stat. § 31-46 (Validity of out-of-state wills) – Recognizes wills validly executed under certain other jurisdictions.

Analysis

Apply the Rule to the Facts: Your will leaves everything to your child, and if your child does not survive you, then equally to your niece and nephew. Because you’ve named alternates for the exact situation where your child predeceases you, that “contrary intent” typically prevents anti-lapse from redirecting the gift to your child’s descendants. The 120-hour rule means your child must outlive you by at least five days unless your will sets a different survival period.

Process & Timing

1. Who files: The named executor (or alternate if the primary executor is deceased or unwilling). Where: Clerk of Superior Court in the North Carolina county of the decedent’s domicile. What: File the original will with an application for probate and letters (AOC-E-201). When: After death; many estates open within a few weeks.
2. The Clerk admits the will to probate and issues Letters Testamentary. The personal representative identifies whether the primary beneficiary survived the required period and then distributes to the named alternates if the survivorship condition failed.
3. If any gift fails beyond what the will addresses, the personal representative applies residuary and anti-lapse rules; unresolved questions can be taken to the Clerk in a will-construction proceeding.

Exceptions & Pitfalls

• If you intend grandchildren to take if your child predeceases, say so; otherwise, alternates you name will usually take ahead of anti-lapse descendants.
• If you want to prevent anti-lapse from applying at all, include clear survivorship language and an express statement that anti-lapse does not apply to failed gifts.
• Simultaneous or close-in-time deaths can trigger the 120-hour rule and change who is deemed to have survived.
• Jointly owned or beneficiary-designated assets pass outside the will; confirm those titles/beneficiary designations align with your plan.

Talk to a Estate Planning Attorney

If you’re dealing with how your gifts should pass if a primary beneficiary dies first, 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.