Will Anti-Lapse and Substitute Gifts in North Carolina
At a glance
| Instruments and gifts covered | Will devises of real or personal property to individuals, classes, or residuary devisees (§ 31-42(a), (d)). |
|---|---|
| Which devisees qualify | Devisee is the testator's grandparent or a descendant of the testator's grandparent (§ 31-42(a)). |
| Death or failure trigger | Devisee dies before testator, whether before or after will execution; deemed death follows Article 24 (§ 31-42(a), (c1)). |
| Descendant survival period | Issue take if they survive the testator; general 120-hour survivorship rule applies when taking depends on survival (§ 31-42(a), (c1); § 28A-24-2(a)). |
| Who takes and how | Deceased devisee's issue take the share as heirs of that devisee under intestacy law in force at testator's death (§ 31-42(a)). |
| Class gifts | Issue replace a deceased class member; if none, surviving members and issue substituting for other deceased members share (§ 31-42(a)). |
| Failed gift and residue | Substitution reaches residue; other failed gifts enter residue, failed residue augments remaining shares, and no residuary devisee means intestacy (§ 31-42(a)–(b)). |
| Contrary intent and survival words | Will may indicate contrary intent; § 31-42 gives no specific survivorship-word example (§ 31-42(a)–(b)). |
| Alternative gifts and appointments | General failure fallback covers a devise that otherwise fails; § 31-42 states no express appointment or alternative-gift rule (§ 31-42(b), (d)). |
| Trust and nonprobate reach | Will rule concerns devisees under wills; revocable trust dispositions have separate substitution rule (§ 31-42(d); § 36C-6-605(a)). |
Requirements one by one
Protected devisee and substitute issue
Under N.C. Gen. Stat. § 31-42(a), the devisee must be the testator's grandparent or a descendant of a grandparent. The statute expressly covers a devisee who died before the will was executed as well as one who died afterward. The deceased devisee's issue divide that person's share as they would inherit from that person under the intestacy law in force when the testator died.
Class and residuary gifts
Section 31-42(a) includes individual, class, and residuary devises. In a class gift, substitute issue receive the share their deceased class member would have received. A class member who leaves no issue contributes that share to surviving members and issue substituting for other deceased members. Under § 31-42(b), an uncovered failed gift passes into the residue; a failed residuary share augments the other residuary shares, including substitute shares; and the property passes by intestacy if no residuary devisee remains.
Survivorship determination
Section 31-42(c1) directs the predecease question to Article 24 of Chapter 28A. Under § 28A-24-2(a), when a right depends on surviving another person's death, clear and convincing evidence of 120 hours of survival is ordinarily required; otherwise the person is deemed to have died first. That rule has its own statutory exceptions.
Trust boundary
Section 31-42(d) defines a devisee as someone entitled to property under a will. A separate rule in § 36C-6-605(a) substitutes issue of a covered beneficiary under a revocable trust who died before execution or before the settlor, or is treated as having died before the settlor. The trust rule uses the settlor's kinship and death as its reference points.
What trips people up
The will's contrary intent can displace substitution under § 31-42(a); the statute supplies no example saying that particular survival words always do so. A failed gift does not automatically pass by intestacy: § 31-42(b) first directs it to the residue and, for a failed residuary share, to other residuary devisees.
Common questions
Does the rule apply if the relative had already died when the will was signed? Yes. Section 31-42(a) expressly covers death before or after execution.
How is the substitute share divided? Section 31-42(a) uses the intestacy shares that the deceased devisee's issue would receive from that devisee under the law in force at the testator's death.
Statutes and sources
- N.C. Gen. Stat. §§ 31-42, 28A-24-2, and 36C-6-605. The source fields above contain verbatim official excerpts, URLs, and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
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