Legal Question in Wills and Trusts in North Carolina

If a person dies without a will, then there is a statutory procedure as to who inherits the estate. Children definitely take precedence. If he has only one child and no spouse, then the son would inherit. However, regarding the trust - you would need to read the trust document to see what it says regarding the death of a beneficiary.

You need to see what the trust says. Is your father still alive? If so, he can amend the trust if its not clear If your father has passed, the trust cannot be amended, but I would still review it to see what it says about the death of any beneficiary.

For wills, there is an anti-lapse statute. The statute is below, but what it says is that if a parent leaves property to a child and the child dies before the parent, then the child's children will take the share of their deceased parent unless the will says otherwise.

Some parents only want to benefit their children and the trust could provide that if a child dies, then his or her share will pass to the other surviving children. There is nothing similar for trusts so that is why you need to read the trust to see what happens to the share of a deceased beneficiary.

Regarding your brother's assets, if your brother died without a will, then your brother's assets will go to his spouse, if any, and his children. If there is no living spouse and your brother only has one child, then the child gets it all.

� 31‑42. Failure of devises by lapse or otherwise; renunciation; 120‑hour survivorship requirement, revised simultaneous death act, Article 24, Chapter 28A.

(a) Unless the will indicates a contrary intent, if a devisee predeceases the testator, whether before or after the execution of the will, and if the devisee is a grandparent of or a descendant of a grandparent of the testator, then the issue of the predeceased devisee shall take in place of the deceased devisee. The devisee's issue shall take the deceased devisee's share in the same manner that the issue would take as heirs of the deceased devisee under the intestacy provisions in effect at the time of the testator's death. The provisions of this section apply whether the devise is to an individual, to a class, or is a residuary devise. In the case of the class devise, the issue shall take whatever share the deceased devisee would have taken had the devisee survived the testator; in the event the deceased class member leaves no issue, the devisee's share shall devolve upon the members of the class who survived the testator and the issue of any deceased members taking by substitution.

(b) Unless the will indicates a contrary intent, if the provisions of subsection (a) of this section do not apply to a devise to a devisee who predeceases the testator, or if a devise otherwise fails, the property shall pass to the residuary devisee or devisees in proportion to their share of the residue. If the devise is a residuary devise, it shall augment the shares of the other residuary devisees, including the shares of any substitute takers under subsection (a) of this section. If there are no residuary devisees, then the property shall pass by intestacy.

(c) Renunciation of a devise is as provided for in Chapter 31B of the General Statutes.

(c1) The determination of whether a devisee has predeceased the testator shall be made as provided by Article 24 of Chapter 28A of the General Statutes.

(d) As used in this section, "devisee" means any person entitled to take real or personal property under the provisions of a will.