Short Answer

In North Carolina, if a sibling-beneficiary dies before the testator (the person who made the will), the state’s anti-lapse rule can pass that share to the sibling’s children unless the will says otherwise. If the sibling survived the testator (including by at least 120 hours) but died later, the gift usually vested at the testator’s death and goes through that sibling’s own estate, not directly to their children—again unless the will requires survival or names an alternate.

Understanding the Problem

In North Carolina probate, can the children of a sibling named in a will receive that sibling’s share when the sibling died after your mother? You’re seeking appointment as executor to clear title, confirm who takes, and address two years of unpaid property taxes.

Apply the Law

North Carolina’s distribution turns on when the named sibling died relative to the testator, what the will says about survival, and whether the anti-lapse statute applies. A beneficiary who survives the testator by at least 120 hours is treated as having survived unless the will sets a different survival period. If a sibling died before the testator (or is deemed not to have survived), anti-lapse can shift the gift to that sibling’s “issue” (children) unless the will shows a contrary intent. If the sibling survived the testator, the share normally vests and passes through the sibling’s estate unless the will conditions survival or provides a substitute taker. The Clerk of Superior Court is the forum for probate and issuing Letters to the executor.

Key Requirements

• Timing of death: Did the sibling-beneficiary survive the testator by at least 120 hours (or a longer period stated in the will)? If yes, their share typically vested at death.
• Anti-lapse trigger: If the sibling died before the testator (or is deemed not to survive), their children usually take that share unless the will says otherwise.
• Will’s contrary intent: Language like “if he survives me,” a stated survival period, or an alternate taker defeats anti-lapse.
• Class gifts and residue: For class gifts (e.g., “to my brothers and sisters”), anti-lapse can still apply; lapsed residuary shares pass to surviving residuary takers unless the will states differently.
• Forum and threshold: Probate and appointment occur before the Clerk of Superior Court; the 120-hour rule is the key survival threshold unless modified by the will.

What the Statutes Say

• North Carolina Gen. Stat. § 31-42 (Anti-lapse) – Saves gifts to certain relatives who predecease the testator by letting their issue take, unless the will shows a contrary intent.
• North Carolina Gen. Stat. § 28A-24-2 (120-hour survivorship) – A beneficiary must survive the testator by at least 120 hours unless the will provides otherwise.
• North Carolina Gen. Stat. § 28A-22-1 (Distribution under a will) – Property is distributed according to the probated will after payment of claims and costs.

Analysis

Apply the Rule to the Facts: You indicate some siblings named in your mother’s will died after your mother. Because they survived the testator, their shares typically vested at your mother’s death and pass through each sibling’s own estate, not directly to their children. If any sibling failed a survival requirement (for example, did not survive by 120 hours or a longer period required by the will), anti-lapse can pass that share to that sibling’s children unless the will overrides it.

Process & Timing

1. Who files: The named executor. Where: Clerk of Superior Court in the North Carolina county of the decedent’s domicile. What: AOC-E-201 (Application for Probate and Letters Testamentary/Of Administration C.T.A.). When: Apply promptly; if the named executor does not apply within 60 days, another interested person may seek appointment.
2. Publish Notice to Creditors and run the claims period (creditors have at least 3 months from first publication). During administration, verify survival facts, read the will for any survival or alternate-taker clauses, identify whether any gift is a class gift, and determine if anti-lapse applies. Pay the two years of delinquent county property taxes promptly to avoid a tax foreclosure.
3. After the claims period and payment of valid claims, distribute according to the will and the above rules. For real property, record the probated will/certificate of probate in the county where the land lies to clear title; for a manufactured/mobile home titled like a vehicle, complete DMV title transfer from the estate to the devisee.

Exceptions & Pitfalls

• Survivorship language: If the will requires a beneficiary to survive by a stated period (e.g., 30 or 60 days), a sibling who fails that condition is treated as predeceasing—potentially triggering anti-lapse to their children.
• Will overrides anti-lapse: Phrases naming alternate takers, or stating lapsed gifts pass to the residue, can defeat anti-lapse.
• Class gifts and residue: Anti-lapse can apply to class gifts to siblings; if a residuary taker predeceases and anti-lapse does not apply, the share typically goes to surviving residuary devisees.
• 120-hour rule: Deaths close in time may invoke the 120-hour survivorship rule; verify dates carefully.
• Real estate and timing: Within two years of death, certain real estate transfers can be problematic if the personal representative does not join and notice to creditors has not been published; coordinate sales or transfers through the estate.
• Mobile home titling: Manufactured/mobile homes titled through DMV follow vehicle-title transfer steps; don’t assume they transfer like real property.

Talk to a Probate Attorney

If you’re dealing with sibling beneficiaries who died around the time of your mother’s death and need to confirm whether their children inherit, 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.