Dying Without a Will in North Carolina, Pt. 3

June 3, 2015 | Cecil Harvell

This is part three in a six-part series entitled Dying Without A Will in North Carolina. Today I will be explaining predeceased heirs and distribution among classes under the North Carolina Intestate Succession Act.


It is sometimes the case that a person who would stand to inherit as an heir under the laws of intestacy has passed away prior to the death of the decedent. For example, say a decedent dies with no spouse, one living child, and one child who predeceased the decedent. In this case, the nearest lineal descendants of the predeceased child "step in" to take that child’s place and inherit from the decedent. Let us say that the child was an adult woman with two children of her own (who are therefore grandchildren of the decedent). In this case, the decedent’s living child inherits half of the estate, and the two grandchildren each inherit one-fourth of the estate, as they divide equally the one-half share that their mother would have otherwise received, had she been living at the time of the decedent’s passing.

A slight change to the previous example illustrates a feature of intestate succession that some may find surprising. Say the decedent had three children during his lifetime, but two of the children preceded him in death, with only one child surviving. The first predeceased child had two children of his own, and the second predeceased child had three children. All five of these grandchildren of the decedent are still living.

In this scenario, who inherits? As in the previous scenario, the living child of the decedent inherits one-third of the estate. As to the five surviving grandchildren, in North Carolina, the statute directs us to divide the remaining two-thirds of the estate among them, equally. So, in this example, each grandchild gets one-fifth of two-thirds of the estate, which is equal to a two-fifteenths share for each of the five surviving grandchildren. This framework of succession is known as per capita at each generation. It treats everyone at the last generation who inherits – in this case, the grandchildren – completely equally. This is the framework adopted by North Carolina’s Intestate Succession Act.

It is worth noting that many people choose to depart from the per capita at each generation model when they execute their Wills. Instead, they choose to employ the per stirpes model of distribution.Per stirpes succession works in much the same was

as the per capita at each generation model. The key difference is that surviving members of the last generation to inherit are not treated equally. To illustrate, consider again the example set forth above. Under per stirpes succession, the living child of the decedent still inherits one-third of the estate. But instead of all five grandchildren sharing equally in the remainder, the one-third shares of each deceased parent is divided among the issue of each parent. The two children of the first predeceased child would together inherit one-third of the estate, so their respective shares would be equal to one-sixth of the total estate. The three children of the second predeceased child would together inherit the remaining one-third of the estate, so they would each inherit one-ninth of the total estate. Though the treatment of the grandchildren here is not as egalitarian as in succession by per capita at each generation, many people employ the more traditional per stirpes method of distribution when making their Wills because they simply prefer this result.

The main takeaway of this discussion is that, had the decedent taken the step of executing a valid Will, he or she would have been able to choose the option he or she preferred. When no Will is executed, the decedent is locked in to the framework prescribe by statute, which is per capita at each generation.

Please look for part four in the six-part series entitled Dying Without A Will in North Carolina- Minor Children and Guardianships in the coming days

Cecil S. Harvell - Elite Lawyer 2024
About the Author
Cecil S. Harvell is AV Martindale-Hubbell Peer Review Rated in the areas of Trusts and Estates, General Practice, and Aged and Aging. Mr. Harvell is a native of Morehead City, North Carolina and was admitted to the Georgia State Bar in 1983 and admitted to the North Carolina State Bar in 1987. Read More
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