Legal Question in Wills and Trusts in North Carolina

Read the sister's will carefully. Does it have anything in there about presumption of survivorship? It may be that your mother had to outlive her sister by a set length of time. If it is 90 days, then she did not make it. In that case, read the sister's will to see what is says about what will happen to your mother's share of the property. If there is nothing, it may be that you and your siblings will inherit your mother's under NC's anti-lapse statute, set forth below.

Failing that, your mother's share might pass as per the residuary clause of the sister's will. Who gets the residue of the estate?

Assuming that there are no survivorship requirements, then your mother's share will be distributed as per your mother's will to your mother's beneficiaries. If your mother died without a will and if there is no living spouse, then her share of her sister's estate plus her other assets will pass to you and any sifblings in equal shares. If your mother had a spouse, then he and the children will share in the estate depending on (1) if there is a will and (2) on the number of children.

To give better advice, I would need to review the sister's will and any will of your mother.

� 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.