Short Answer

In North Carolina, if a child named in your will dies before you, the anti-lapse rule usually sends that child’s share to their descendants unless your will says otherwise. But that default passes assets outright, not in trust. To hold a predeceased child’s share for your grandchildren until age 25, your will must say their share is held in a testamentary trust with clear terms (trustee, uses, and age 25 distribution).

Understanding the Problem

In North Carolina, can I ensure that if my adult child dies before me, their share goes to that child’s children in a trust until they turn 25? You are making or updating your will, and you want contingent gifts per stirpes for grandchildren, held in testamentary trusts until age 25, in case a child predeceases you.

Apply the Law

North Carolina’s anti-lapse rule saves many gifts to relatives who die before the testator by letting their “issue” (descendants) take instead, typically by branch (per stirpes). However, anti-lapse alone does not create a trust; it simply changes who takes. If you want grandchildren to receive through a trust until age 25, you must put those trust instructions in your will. A testamentary trust springs into effect only if your will is admitted to probate by the Clerk of Superior Court. Without trust terms, minors’ inheritances are handled under default rules (such as UTMA to age 21) or through a guardian, which does not meet your age 25 goal.

Key Requirements

• Clear substitute-taker language: Say that if a child does not survive you, that child’s share passes to their descendants per stirpes.
• Express trust terms to age 25: Create a testamentary trust for each affected grandchild with a named trustee, management powers, and distribution at or before age 25.
• Trustee and powers: Name a primary and backup trustee, grant spending/investment powers, and include spendthrift protection.
• Coordinate beneficiary designations: Update retirement and annuity forms so the share for a predeceased child’s line points to the testamentary trust (or a companion subtrust), or assets may bypass your will.
• Specific gifts backup: For any specific devise (like a condo to one child), add a backup clause sending it to that child’s descendants’ trust if that child predeceases you.
• Execution formalities: Sign an attested will with two witnesses and consider a self-proving affidavit to streamline probate.

What the Statutes Say

• North Carolina Gen. Stat. § 31-42 (Anti-lapse) – If a qualifying relative-beneficiary dies first, their issue generally take unless the will says otherwise.
• North Carolina Gen. Stat. § 31-3.3 (Execution of attested wills) – Requirements for a valid signed and witnessed will.
• North Carolina Gen. Stat. § 31-11.6 (Self-proved wills) – Optional affidavit that simplifies probate.
• North Carolina Gen. Stat. § 33A-6 (UTMA transfers by fiduciaries) – Custodial transfers to age 21 if no trust is used.

Analysis

Apply the Rule to the Facts: You want grandchildren to take per stirpes, but held until age 25. Anti-lapse would send a deceased child’s share to that child’s descendants, but it would be an outright gift unless your will creates a testamentary trust with an age 25 provision. Add backup language for the condo so it pours into the same grandchild trust if that child dies first. Finally, update retirement/annuity beneficiary forms so those assets feed the appropriate testamentary subtrusts.

Process & Timing

1. Who files: You sign a new will now; after death, the named executor files with the Clerk of Superior Court. Where: Clerk of Superior Court in the county of your domicile. What: AOC‑E‑201 (Application for Probate and Letters Testamentary/Of Administration CTA). When: Typically soon after death; procedures can vary by county.
2. The Clerk reviews the will (self‑proved wills are faster), admits it to probate, and issues Letters to the executor. The executor then marshals assets and funds the testamentary trusts; expect initial administration to take months.
3. The trustee opens a trust account, manages and distributes for each grandchild under the trust’s standards, and makes final distribution at age 25 (or as your terms direct), then closes the trust.

Exceptions & Pitfalls

• Survivorship language overrides anti-lapse: If your will says a child must “survive me,” their share may fall to the residuary or others, not their descendants.
• Trust vs. UTMA: Without trust terms, minors’ gifts may be handled under UTMA—typically ending at 21—not your desired age 25.
• Beneficiary designations control: Retirement and annuity benefits pass by contract; if not aligned, they can bypass your will and the grandchildren’s trust.
• Specific property changes: If you leave a condo and later sell or retitle it, that gift can fail; include backup directions to the descendants’ trust.
• Court oversight of trustees: By default, testamentary trustees don’t account to the Clerk unless your will requires it; add only the oversight you want.
• Define per stirpes clearly: Use consistent language to avoid disputes over per stirpes vs. per capita distributions.

Talk to a Estate Planning Attorney

If you want a grandchild’s share held in trust until age 25 and aligned with your beneficiary designations, 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.