Short Answer

Under North Carolina’s anti-lapse law, if a will beneficiary who is a grandparent of the testator or a descendant of a grandparent dies before the testator, that beneficiary’s children (their “issue”) generally take the deceased beneficiary’s share. The substitute takers must survive the testator by 120 hours. Clear survivorship or contrary-intent language in the will can override anti-lapse. If anti-lapse does not apply, the gift usually falls into the residue or, if none, passes by intestacy.

Understanding the Problem

In North Carolina probate, the question is straightforward: if a named will beneficiary died before the decedent, can the beneficiary’s children take that share? Here, a primary beneficiary predeceased the decedent and left children. The answer turns on North Carolina’s anti-lapse rules, whether the will contains survivorship or contrary-intent language, and whether the predeceased beneficiary is within the family relationships the statute protects.

Apply the Law

North Carolina’s anti-lapse statute saves certain gifts that would otherwise fail when a beneficiary dies before the testator. It applies if the deceased beneficiary is a grandparent of the testator or a descendant of a grandparent (for example, a parent, sibling, aunt/uncle, or cousin). If so, the beneficiary’s “issue” step into that beneficiary’s shoes and take by representation through that branch. The substitute takers must survive the decedent by at least 120 hours. Clear will language requiring survival or otherwise showing a contrary intent defeats anti-lapse. If anti-lapse does not apply, a failed specific or general gift typically passes to the residue; a failed residuary share generally goes to the other residuary devisees unless the will provides otherwise.

Key Requirements

• Covered relationship: The predeceased beneficiary must be a grandparent of the testator or a descendant of a grandparent of the testator.
• Issue to take: The beneficiary left surviving “issue” who would qualify as the testator’s heirs under intestacy; they take that beneficiary’s share by representation through that line.
• Survival period: Substitute takers must survive the testator by at least 120 hours unless the will provides a different rule.
• No contrary intent: Words of survivorship (e.g., “if he survives me”) or clear directions that lapsed gifts pass elsewhere override anti-lapse.
• Residuary rule: If anti-lapse does not apply and a residuary devisee predeceased the testator, that portion generally passes to the other residuary devisees; absent any, it passes by intestacy.
• Class gifts: For a class gift (e.g., “to my children”), a deceased class member’s issue can take that member’s share if the anti-lapse statute applies; otherwise, surviving class members take.

What the Statutes Say

• North Carolina Gen. Stat. § 31-42 (Anti-lapse; lapsed and void devises) – Identifies who is covered, when issue substitute, and how failed gifts are treated.
• North Carolina Gen. Stat. § 28A-24-2 (120-hour survival rule) – Requires survival by at least 120 hours unless a governing instrument says otherwise.
• North Carolina Gen. Stat. § 31-46 (Validity of out-of-state wills) – Explains when an out-of-state will is valid in North Carolina.
• North Carolina Gen. Stat. § 28A-2-4 (Clerk’s jurisdiction to construe wills) – Allows construction proceedings before the Clerk of Superior Court to resolve who takes.

Analysis

Apply the Rule to the Facts: A primary beneficiary died before the decedent and left children. If that beneficiary is within the statute’s protected family group (a grandparent or a descendant of a grandparent of the testator), the beneficiary’s children take that share by representation, provided they each survive the decedent by 120 hours. If the will includes clear survivorship or contrary-intent language (for example, “to X if X survives me; otherwise to Y”), anti-lapse will not apply and the will’s stated fallback controls.

Process & Timing

1. Who files: The personal representative or any interested party. Where: Clerk of Superior Court in the North Carolina county handling the estate. What: For an out-of-state will that is not self-proved, file the Application for Probate and Letters (AOC‑E‑201) with the Addendum for Out‑of‑State Will (AOC‑E‑309); if anti-lapse creates uncertainty, file an estate proceeding to construe the will. When: As soon as practicable after death and before distributions; substitute takers must have survived by at least 120 hours.
2. The clerk reviews the will’s validity and proof. If witnesses are hard to locate, the clerk may consider available competent evidence to establish due execution and admit the will to probate. If the named executor renounces, expect Letters of Administration with Will Annexed (CTA) to be issued to a qualified substitute.
3. The personal representative inventories assets, identifies whether anti-lapse applies to any failed gifts, confirms substitute takers, and, if needed, seeks an order construing the will. The estate then distributes according to the clerk’s order and applicable statutes.

Exceptions & Pitfalls

• Contrary-intent or survivorship language: Phrases like “if she survives me” or instructions that lapsed gifts pass elsewhere defeat anti-lapse.
• Residuary gifts: If anti-lapse does not apply to a residuary share, that portion generally goes to the other residuary devisees; if none, it passes by intestacy.
• Class gifts: In “to my children” gifts, a deceased child’s issue take only if anti-lapse applies; otherwise, surviving class members share the entire gift.
• Non‑probate assets: Joint accounts with survivorship, TOD brokerage accounts, and other beneficiary‑designated assets pass outside the will; anti-lapse does not control those transfers.
• Minor takers: If substitute takers are minors, distributions may need a custodian (UTMA) or court‑approved arrangement to receive funds.

Conclusion

In North Carolina, when a covered relative-beneficiary dies before the testator, the anti-lapse statute generally substitutes that beneficiary’s children for the gift, provided they survive by 120 hours and the will does not clearly say otherwise. If anti-lapse does not apply, the gift usually falls into the residue or passes by intestacy. Next step: review the will for survivorship or contrary-intent clauses and, if uncertain, file a will-construction request with the Clerk of Superior Court before distributing the estate.

Talk to a Probate Attorney

If you’re dealing with a predeceased beneficiary and questions about who takes under a North Carolina will, 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.