North Carolina’s anti-lapse statute determines what happens to your property when your intended heir passes away before you do. § 31-42. There are basically three types of situations covered by the anti-lapse statute, depending on who the intended heir was and whether you have a residuary clause in your will.
When the Heir is Your Close Relative
The first situation where the anti-lapse statute applies is when the intended heir was either your grandparent or a descendant of your grandparents. The statute provides that the children of the intended heir will receive the bequest.
For example, if you leave your car to your father, but he passes away before you do, then your father’s other children would receive the car under the anti-lapse statute. If your father had multiple children, they would each receive an equal share of the car.
This law applies even if the beneficiaries who receive property under the anti-lapse statute were not otherwise beneficiaries under your will. You can avoid accidentally leaving property to these unintended heirs by carefully drafting your will.
When the Heir is Not a Close Relative
If the heir is not your grandparent or a descendant of your grandparent, the anti-lapse statute provides that the residuary devisee will receive the property that was intended for the deceased heir. A residuary devisee is someone who receives your residuary estate, which includes all of your property that is not specifically mentioned in the will.
If you fail to include a residuary clause in your will, then the property intended for the deceased heir will pass to the beneficiaries listed under North Carolina’s intestacy laws. These beneficiaries are often your spouse or children, but they could be more distant relatives if you are not married and don’t have any kids.
You Can Choose Your Own Alternate Heirs
The best way to avoid having unintentional heirs to your estate is to create your own alternate heirs for each bequest of property in your will. The anti-lapse statute only applies if your will is silent on this issue, so you can create your own rules as to what happens when an heir predeceases you.
Your estate planning attorney can name alternate heirs for each piece of property listed in your will, as well as alternate beneficiaries for your residual estate. This way, you can be sure that your property will only go to your chosen heirs.
King Law Offices is a full-service law firm with an outstanding team of professionals who work diligently, creatively and compassionately on behalf of our clients each day. We serve the Upstate of South Carolina and Western North Carolina. Call 888-748-KING (5464) today for a consultation.