Short Answer

In North Carolina, if a child named in the will dies before the testator and leaves children, those grandchildren usually take their parent’s share by substitution unless the will clearly says otherwise. This is called the anti-lapse rule and it distributes the predeceased child’s portion to their issue, typically per stirpes. For real estate, follow title and sale rules (including recording the will in each county with land and, if selling within two years, having the personal representative join the deed after notice to creditors). If any grandchildren are minors, use a lawful delivery method (guardian, UTMA custodian, or pay into court).

Understanding the Problem

In North Carolina probate, can a co-executor distribute a share left to a daughter who died before the testator to that daughter’s children under the will, and how does this work when the estate includes a home in one county and acreage in another, with one surviving daughter still living in the home?

Apply the Law

Under North Carolina’s anti-lapse rule, when a devisee who is a child (or another close relative within the statute’s covered class) dies before the testator and leaves surviving issue, those issue step into their parent’s shoes unless the will shows a contrary intent (for example, a survivorship condition or a clause sending failed gifts to the residue). Distribution to grandchildren is typically per stirpes, meaning they share the portion their parent would have received. Real property devised by will vests in the devisees at death subject to the personal representative’s limited powers and creditor rights. The main forum is the Clerk of Superior Court in the county where the estate is administered. A practical threshold to watch is the two-year period after death governing sales by heirs or devisees; within that window, certain sales are void as to creditors unless specific steps are followed. The 120-hour survival rule also affects whether a beneficiary is treated as having survived.

Key Requirements

• Covered relationship and predeceasing: The deceased devisee must be within the covered family group (e.g., a child), and have died before the testator.
• Issue who would be heirs: The predeceased devisee left surviving issue (children/grandchildren) who could inherit from the testator if there were no will.
• No contrary will language: The will does not require the devisee to survive or direct failed gifts elsewhere; if it does, that controls.
• Per stirpes split: Divide the deceased devisee’s share among that person’s children by representation (per stirpes) unless the will directs a different method.
• Real estate compliance: Record the probated will where each parcel lies; if selling within two years, involve the personal representative after notice to creditors or use any express power of sale in the will.
• Minor beneficiaries: Use a lawful method to deliver to minors (guardian, UTMA custodian with any needed court approval, or payment into court).

What the Statutes Say

• North Carolina Gen. Stat. § 31-42 (Anti-lapse) – Substitutes a deceased devisee’s issue for that devisee unless the will shows a contrary intent.
• North Carolina Gen. Stat. § 28A-17-12 (Sales by heirs/devisees) – Within two years after death, certain sales are void as to creditors unless the PR joins after notice to creditors.
• North Carolina Gen. Stat. § 28A-24-2 (120-hour survival) – A person must survive the decedent by at least 120 hours unless the will provides otherwise.
• North Carolina Gen. Stat. § 28A-22-7 (Distribution to minors) – Allows delivery of small personal property to a parent/guardian, with other options if larger or not authorized.

Analysis

Apply the Rule to the Facts: The will leaves the residence equally to the daughters, and one daughter died before the testator leaving children. Absent contrary will language, her children take her one-half share by substitution, divided per stirpes. Because the estate includes land in two counties, file a certified copy of the probated will in each county where land lies to put title in the proper names. The occupying daughter’s move-out can be handled by a written agreement; if a co-executor advances personal funds to facilitate vacancy, obtain written consent of beneficiaries and, ideally, clerk approval for reimbursement to keep the accounting clean.

Process & Timing

1. Who files: Co-executor. Where: Clerk of Superior Court in the decedent’s county of residence; record certified copies of the will in each county where real property sits (e.g., County 1 and County 2). What: AOC-E-201 (Application for Probate and Letters), publish notice to creditors, and provide beneficiary notices. When: Open the estate promptly; publish notice to creditors soon after qualification.
2. For real property: confirm whether the will grants an express power of sale or conveys title to the personal representative. If selling within two years of death and the PR does not have independent sale authority, publish the notice to creditors and have the PR join in any deed by the devisees to keep the sale valid as to creditors; consider a court-approved private sale if needed.
3. Distribute the deceased daughter’s portion to her children per stirpes. For any minor grandchild, select a lawful delivery method (parent/guardian under § 28A-22-7, a UTMA custodian with any required court approval, or payment into court). Document distributions and reflect them in the final account.

Exceptions & Pitfalls

• Survivorship or “no anti-lapse” clauses can divert the share to others; always read the will for contrary intent before applying substitution.
• If any grandchild did not survive the testator by 120 hours and the will is silent, that grandchild is treated as having predeceased for taking purposes.
• Minor beneficiaries cannot receive outright; use a parent/guardian, UTMA custodian (with court approval if thresholds are exceeded), or pay into court to avoid voidable distributions.
• For multi-county land, failing to record the probated will in each county can cloud title and hinder sale or refinance.
• Personal representatives generally should not pay ongoing home expenses without authorization; if advancing personal funds (e.g., to secure vacancy), obtain beneficiary consent and consider a clerk order to support reimbursement and avoid self-dealing concerns.

Talk to a Probate Attorney

If you’re dealing with a predeceased child’s share passing to grandchildren and real estate in multiple North Carolina counties, 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.