Article 7.

Construction of Will.

§ 31-38.  Devise presumed to be in fee.

When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity. (1784, c. 204, s. 12; R.C., c. 119, s. 26; Code, s. 2180; Rev., s. 3138; C.S., s. 4162.)

 

§ 31-39.  Probate necessary to pass title; rights of lien creditors and purchasers; recordation in county where real property lies.

(a)       A duly probated will is effective to pass title to real and personal property.

(b)       A will is not effective to pass title to real or personal property as against lien creditors or purchasers for valuable consideration from the intestate heirs at law of a decedent, unless the will is probated or offered for probate before the earlier of (i) the date of the approval by the clerk of the superior court having jurisdiction of the decedent's estate of the final account filed by the personal representative of the decedent's estate, or (ii) the date that is two years from the date of death of the decedent. If the will is fraudulently suppressed, stolen, or destroyed, or is lost, and an action or proceeding is instituted within the time limitation set forth in this subsection to obtain that will or establish that will as provided by law, the time limitation under this subsection begins to run from the termination of that action or proceeding.

(c)       A will duly probated in one county of this State is not effective to pass title to an interest in real property located in any other county of this State as against lien creditors or purchasers for valuable consideration from the intestate heirs at law of a decedent unless a certified copy of the will and a certified copy of the certificate of probate of the will are filed in the office of the clerk of superior court in the county where the real property lies within the time limitation set forth in subsection (b) of this section.

(d)       A conveyance made by the intestate heirs at law of a decedent before the expiration of the time limitation set forth in subsection (b) of this section shall, upon the expiration of that time, become effective to the same extent as if the conveyance were made after the expiration of that time, unless before the expiration of that time, a proceeding is instituted in the proper court to probate a will of the decedent.  (1784, c. 225, s. 6; R.C., c. 119, s. 20; Code, s. 2174; Rev., s. 3139; 1915, c. 219; C.S., s. 4163; 1953, c. 920, s. 1; 2012-68, s. 2; 2014-107, s. 2.2.)

 

§ 31-40.  What property passes by will.

Any testator, by the testator's a will duly executed, may devise or dispose of all real and personal property which the testator shall be entitled to at the time of the testator's death, and which, if not so devised or disposed of, would descend or devolve upon the testator's heirs at law, or upon the testator's personal representative; and the power hereby given shall extend to all contingent, executory, or other future interest in any real or personal property, whether the testator may or may not be the person or one of the persons in whom the same may become vested, or whether the testator may be entitled thereto under the instrument by which the same was created, or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, whether any such condition has or has not been broken at the testator's death, all other rights of entry, and possibilities of reverter; and also to such of the same estates, interests, and rights respectively, and other real and personal  property, as the testator may be entitled to at the time of the testator's death, notwithstanding that the testator may become entitled to the same subsequently to the execution of the testator's will.  (1844, c. 88, s. 1; R.C., c. 119, s. 5; Code, s. 2140; Rev., s. 3140; C.S., s. 4164; 1973, c. 1446, s. 15; 2011-284, s. 33; 2011-344, s. 8.)

 

§ 31-41.  Will relates to death of testator.

Every will shall be construed, with reference to the real and personal estate comprised therein, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. (1844, c. 88, s. 3; R.C., c. 119, s. 16; Code, s. 2141; Rev., s. 3141; C.S., s. 4165.)

 

§ 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. (1844, c. 88, s. 4; R.C., c. 119, s. 7; Code, s. 2142; Rev., s. 3142; 1919, c. 28; C.S., s. 4166; 1951, c. 762, s. 1; 1953, c. 1084; 1965, c. 938, s. 1; 1975, c. 371, s. 3; 1979, c. 525, s. 5; 1987, c. 86, ss. 1, 2; 1989, c. 244; 1999-145, s. 1; 2001-83, s. 1; 2007-132, ss. 3(a), (b).)

 

§§ 31-42.1 through 31-42.2.  Repealed by Session Laws 1965, c. 938, s. 2.

 

§ 31-43: Repealed by Session Laws 2015-205, s. 3(b), effective August 11, 2015.

 

§ 31-44.  Repealed by Session Laws 1951, c. 762, s. 2.

 

§ 31-45:  Rewritten and renumbered as G.S. 31-5.5 by Session Laws 1953, c. 1098, s. 7.

 

§ 31-46.  Validity of will; which laws govern.

A will is valid if it meets the requirements of the applicable provisions of law in effect in this State either at the time of its execution or at the time of the death of the testator, or if any of the following apply:

(1)        The will's execution complied with the law of the jurisdiction in which the testator was physically present at the time of execution.

(2)        Its execution complied with the law of the place where the testator was domiciled at the time of execution or at the time of death.

(3)        It is a military testamentary instrument executed in accordance with the provisions of 10 U.S.C. § 1044d or any successor or replacement statute.  (1953, c. 1098, s. 14; 2013-91, s. 1(g); 2019-178, s. 3(b).)

 

§ 31-46.1.  Construction of certain formula clauses applicable to estates of decedents dying in calendar year 2010.

(a)       Purpose. - The federal estate tax and generation-skipping transfer tax expired January 1, 2010, for one year. To carry out the intent of decedents in the construction of wills and trusts and to promote judicial economy in the administration of trusts and estates, this section construes certain formula clauses that reference federal estate and generation-skipping transfer tax laws and that are used in wills or codicils of decedents who die in or before calendar year 2010.

(b)       Applicability. - This section applies to the following:

(1)        To a will or codicil executed by a decedent before December 31, 2009, that contains a formula provision described in subsection (c) of this section if the decedent dies after December 31, 2009, and before the earlier of January 1, 2011, and the effective date of the reinstatement of the federal estate tax and generation-skipping transfer tax, unless the will or codicil clearly manifests an intent that a rule contrary to the rule of construction described in subsection (c) of this section applies.

(2)        To the terms of a will or codicil executed by a decedent who dies before December 31, 2009, providing for a disposition of property that contains a formula provision described in subsection (c) of this section and occurs as a result of the death of another individual who dies after December 31, 2009, and before the earlier of January 1, 2011, and the effective date of the reinstatement of the federal estate tax and generation-skipping transfer tax, unless the terms of the will or codicil clearly manifests an intent that a rule contrary to the rule of construction described in subsection (c) of this section applies.

(c)       Construction. - A will or codicil subject to this section is considered to refer to the federal estate and generation-skipping transfer tax laws as they applied with respect to estates of decedents dying on December 31, 2009, if the will or codicil contains a formula that meets one or more of the following conditions:

(1)        The formula refers to any of the following: "applicable credit amount," "applicable exclusion amount," "applicable exemption amount," "applicable fraction," "estate tax exemption," "generation-skipping transfer tax exemption," "GST exemption," "inclusion ratio," "marital deduction," "maximum marital deduction," "unified credit," or "unlimited marital deduction."

(2)        The formula measures a share of an estate or trust based on the amount that can pass free of federal estate taxes or the amount that can pass free of federal generation-skipping transfer taxes.

(3)        The formula is otherwise based on a provision of federal estate tax or federal generation-skipping transfer tax law similar to the provisions in subdivision (1) or (2) of this subsection.

(d)       Judicial Determination. -  The personal representative or an affected beneficiary under a will or testamentary trust may bring an action in the superior court division of the General Court of Justice under Article 26 of Chapter 1 of the General Statutes, and the trustee of a trust created under the will or an affected beneficiary under the trust may bring a proceeding as permitted under Article 2 of Chapter 36C of the General Statutes to determine whether the decedent intended that the references under subsection (c) of this section be construed with respect to the federal law as it existed after December 31, 2009. The action must be commenced within 12 months following the death of the decedent.  (2010-126, s. 1.)