Short Answer

Yes. In North Carolina, a child born after a will is signed may be entitled to an intestate share even if the will says otherwise, and a surviving spouse can claim an elective share if the will and nonprobate transfers leave too little. Wrongful death proceeds are distributed to heirs by intestacy regardless of the will. You can also challenge the will’s validity by caveat when there are legal grounds, though many families obtain relief without invalidating the will.

Understanding the Problem

You’re asking whether, under North Carolina probate law, you can secure a fair share for a minor child and adjust the surviving spouse’s share when a decades-old will omits them. Here, the decedent’s old will names a parent as executor and leaves property to siblings, and a wrongful death claim is time‑sensitive but the named executor is not cooperating.

Apply the Law

North Carolina law gives two powerful protections when a will is outdated: (1) the “after‑born” or pretermitted child statute, which can grant the child an intestate share, and (2) the spouse’s elective share, which lets a surviving spouse take a statutory portion of a broad asset base if the combined transfers fall short. Wrongful death proceeds are separate from the probate estate and pass to heirs by intestacy, not by the will. The Clerk of Superior Court oversees estate proceedings; the superior court hears any will caveat. Key deadlines include the spouse’s six‑month window to claim an elective share after letters are issued and a three‑year window to file a caveat after probate.

Key Requirements

• After‑born child status: The child was born or adopted after the will and the will made no relevant provision; if so, the child typically takes an intestate share carved out of the estate.
• Spouse’s elective share: The surviving spouse must file a petition within six months after letters issue; the share is a percentage of the decedent’s total net assets reduced by amounts already passing to the spouse.
• Wrongful death proceeds: Only the personal representative files the claim; net proceeds are not probate assets and are distributed to heirs under intestacy rules.
• Nonprobate assets: Property with valid beneficiary designations (e.g., annuities) generally passes outside probate and is not redirected by the will or the personal representative.
• Executor issues: If the named executor refuses to qualify or act, the Clerk can appoint an administrator with the will annexed (administrator c.t.a.) to move the case and pursue claims.

What the Statutes Say

• North Carolina Gen. Stat. § 31-5.5 (After‑born or after‑adopted children) – After‑born children may receive an intestate share unless specific exceptions apply.
• North Carolina Gen. Stat. § 30-3.4 (Elective share procedure) – Sets filing deadline (six months after letters) and procedural requirements.
• North Carolina Gen. Stat. § 28A-18-2 (Wrongful death) – Personal representative brings the claim; net proceeds go to heirs by intestacy and are generally not subject to the will or creditors (with limited statutory exceptions).
• North Carolina Gen. Stat. § 28A-4-1 (Appointment; administrator c.t.a.) – Allows appointment of an administrator with the will annexed if the named executor does not serve.

Analysis

Apply the Rule to the Facts: Because the minor child arrived after the old will, the child can likely claim an intestate share unless the will made some provision or fits a statutory exception. The spouse appears omitted, so an elective share claim is available if the combined transfers to the spouse are below the statutory minimum; that petition must be filed within six months after letters are issued. Wrongful death proceeds will pass to heirs—including the spouse and child—regardless of what the will says. If the named executor is not cooperating, you can ask the Clerk to appoint an administrator c.t.a. to pursue the wrongful death claim and move the estate forward.

Process & Timing

1. Who files: Surviving spouse (and, for the child, a parent/guardian). Where: Clerk of Superior Court in the county of primary administration. What: Apply for letters (AOC‑E‑201) if the named executor will not qualify; petition in the estate for the child’s after‑born share; file a petition for elective share. When: File the elective share petition within six months after letters issue; raise the child’s rights promptly before distributions.
2. Next: If the executor is uncooperative, move the Clerk to appoint an administrator c.t.a. or limited personal representative to prosecute the wrongful death claim. Once appointed, the personal representative files the wrongful death action; any settlement for a minor must be approved by a judge.
3. Final: The Clerk enters orders recognizing the child’s share and any elective share; wrongful death proceeds are distributed to heirs by intestacy, and the estate proceeds to accounting and closing.

Exceptions & Pitfalls

• After‑born child exceptions apply if the will makes any provision for the child, shows an intent to omit, or all gifts go to a surviving spouse; confirm before filing.
• Nonprobate annuities with valid beneficiary designations typically cannot be redirected by the personal representative.
• Elective share petitions require proper service on the personal representative and other “responsible persons”; missing service can derail the claim. Consider asking the Clerk for a standstill order to pause distributions.
• A caveat contests validity (e.g., lack of capacity, undue influence) and must be filed within three years after probate; it is heard in superior court.
• Wrongful death proceeds must not be commingled with estate assets; minors’ funds generally require a guardianship of the estate or other court‑approved safeguarding.

Talk to a Probate Attorney

If you’re dealing with an outdated will, an omitted child, and an uncooperative executor, 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.