Ancillary probate in North Dakota.

North Dakota Probate;

Ancillary Probate in North Dakota

Non-resident Decedents
Owning North Dakota Real Property

Ancillary Probate in North Dakota – Defined

Ancillary probate in North Dakota properly speaking is available when there is an open estate proceeding for a non-North Dakota decedent.

If a non-North Dakota resident dies owning real property in North Dakota – including mineral rights – which was:

• not titled in joint tenancy,
  and
• not subject to a North Dakota Transfer on Death Deed,

the decedent’s legal heirs or Will beneficiaries essentially have three options:

1. Open a North Dakota probate proceeding – which will result in the appointment of a personal representative in a “local administration”;
2. Obtain a North Dakota Court’s recognition of the authority of a domiciliary foreign personal representative – the personal representative of the decedent’s estate who was appointed in the state where the decedent was domiciled at the time of his or her death – to administer the decedent’s North Dakota real property; or
3. If the decedent had no Will, petition for a North Dakota Determination of Heirship – a Court determination of the decedent’s legal heirs – which upon recording, can have the effect of providing evidence of the transfer of the North Dakota real property interest formerly owned by the decedent to the decedent’s legal heirs.

The local administration option was required prior to July 1, 1975.

However, after July 1, 1975, the domiciliary foreign personal representative option became available.

Under either the local administration option, or the domiciliary foreign personal representative option resulting in an Ancillary probate in North Dakota, a number of different procedures and documents may be required, depending on whether the decedent:

1. Had executed a valid Will before death;
   or
2. Died more than three years prior to the date on which a petition is filed with a North Dakota Court, to either:
   • open a North Dakota probate proceeding,
     or
   • obtain a North Dakota Court’s recognition of the authority of the domiciliary foreign personal representative in an Ancillary probate in North Dakota proceeding.

However, probate practice is not always uniform among all of North Dakota’s counties.

Therefore, there may be some procedural variations among North Dakota counties in the Ancillary probate in North Dakota proceeding.

Ancillary Probate in North Dakota

If the eligible legal heirs or Will beneficiaries of a non-North Dakota resident who died owning real property in North Dakota – including mineral rights – elect to follow probate procedures which do not involve the opening of a North Dakota probate proceeding (an ancillary probate in North Dakota), any North Dakota probate proceeding will be subordinate (ancillary) to, the primary probate proceeding in the decedent’s state of residence.

If Less Than 3 Years Since the Date of Death

Open a North Dakota Probate Proceeding

If a non-North Dakota resident dies owning real property in North Dakota, and:

• it has been less than three years since the date of the decedent’s death,
  and
• one or more the decedent’s legal heirs or Will beneficiaries seek to open a North Dakota probate proceeding as a local administration,

the probate rules generally applicable to a North Dakota resident must be followed.

Ancillary Probate in North Dakota

If a non-North Dakota resident dies owning real property in North Dakota, and:

• it has been less than three years since the date of the decedent’s death,
  and
• one or more the decedent’s legal heirs or Will beneficiaries seek to obtain a North Dakota Court’s recognition of:
  • the authority of the domiciliary foreign personal representative in North Dakota,
  • to administer the decedent’s North Dakota real property in accordance with North Dakota law,

in an Ancillary Probate in North Dakota proceeding, a number of different procedures and documents may be required for such a, depending upon:

1.  whether the decedent had executed a valid Will before death;
   and
2. whether the decedent’s estate is still open, or had ever been opened, in the state where the decedent was domiciled at the time of his or her death.

(i)      Intestate (No Will) Probate Opened in Another State

If the decedent:

• died intestate without a Will,
  and
• a probate file is open and active in a state other than North Dakota,

the personal representative of such other state may submit the following documentation to the North Dakota Court in an Ancillary Probate in North Dakota proceeding:

Authenticated or certified copies of:

1. The Letters of Administration,
   and
2. The Order Appointing the Personal Representative.

from the other state’s probate court, together with:

1. A North Dakota probate court form attesting to the following facts:
   • the death of the decedent;
   • the decedent’s state of domicile at the time of his or her death;
   • the decedent’s ownership of real property in North Dakota;
   • the appointment of a personal representative of the decedent’s estate in the state where the decedent was domiciled at the time of his or her death;
   • and
   • that there is neither
     • a current administration of the decedent’s estate in North Dakota,
       nor
     • any petition for such administration pending.
2. A proposed North Dakota Court Order authorizing the personal representative of the decedent’s estate appointed in the state where the decedent was domiciled at the time of his or her death to exercise the powers of a local representative in North Dakota.

In many states, authenticated documents are different than certified documents.

In such states, an authenticated document will typically identify that:

• a signing judge has certified that a court clerk who certified a document properly held the office of court clerk,
  and
• the court clerk has certified that the signing judge properly held the office of judge.

In contrast, a certified document will generally state that the court clerk certifies that the copy which has been produced is a true and correct copy of the original document, and when applicable, is still in effect.

South Dakota Certification Statement

One certification statement of a certified copy of a Will issued by the probate court in Meade County, South Dakota, read as follows:

STATE OF SOUTH DAKOTA, FOURTH JUDICIAL CIRCUIT COURT

I hereby certify the within document to be a true and correct copy

of the original will on file in this office. I further certify that the document was (formally/informally) admitted to probate, and that at the time of death, the decedent was domiciled in the State of South Dakota.

Minnesota Certification Statement

One certified copy of Letters of General Administration issued in Ramsey County, Minnesota, read as follows:

STATE OF MINNESOTA, RAMSEY COUNTY

Certified to be a true and correct copy of the original on file and of record in my office. I further certify the Letters are in full force and effect, that no objection to appointment has been filed, and/or no formal proceedings have been commenced.

Courts in some states, or even counties within certain states, may not issue authenticated documents, or else call them by a different name.

For example, Hennepin County, Minnesota, where Minneapolis is located, does not issue authenticated documents – but rather a similar document known as an “exemplified copy” – which has the signature of a judge, and two signatures of the court administrator.

District Court Administrator

 I, the undersigned District Court Administrator, do hereby certify that I have compared the paper(s) writing to which this certificate is attached with the original Last Will and Testament of [Decedent] in the action therein entitled, as the same appearing of record and on file in District Court at the Government Center in Hennepin County, Minnesota, and find the same to be a true and correct copy(ies) thereof, and of the whole thereof.

 In Testimony Whereof, I have hereunto set my hand and affixed the seal of said District Court, at the City of Minneapolis, in said County, this 1st day of June, AD 2014.

 Signed – Court Administrator

 Presiding Judge

 I, Presiding Judge of the District Court for the Fourth Judicial District, State of Minnesota, do hereby certify that the District Court Administrator whose name is subscribed to the foregoing certificate of attestation, is and was at the time of making the same, Court Administrator, in and for the County of Hennepin, said State of Minnesota, duly appointed and qualified, keeper of its’ seal and the custodian of its’ files and records, and that his official acts are entitled to full faith and credit; that I am well acquainted with the handwriting of said Administrator, and verily believe his signature to said certificate to be genuine, and that certificate is in due form and by the proper officer.        

Witness my hand at the City of Minneapolis, in said County of Hennepin and State of Minnesota this 1st day of June, AD 2014

 Signed – Presiding Judge

 District Court Administrator

 I, the undersigned District Court Administrator, Fourth Judicial District, in and for the County of Hennepin, State of Minnesota, do hereby certify that the Honorable Presiding Judge of the District Court whose name is subscribed to the foregoing certificate of attestation, is and was at the time of making the same, Presiding Judge of said District Court, for the Fourth Judicial District, State of Minnesota, duly elected and qualified, and that his official acts are entitled to full faith and credit; that I am well acquainted with the handwriting of said Judge, and verily believe his signature to said certificate to be genuine.

 In Testimony Whereof, I have hereunto set my hand and affixed the seal of said District Court, at the City of Minneapolis, in said County, this 1st day of June, AD 2014.

 Signed – Court Administrator

If a given state does not “authenticate” probate documents issued by its probate courts, a petitioner may be required to submit certified copies of such documents to the North Dakota Probate Court, and see if such documents will be acceptable to the Court in an Ancillary probate in North Dakota proceeding.

In such circumstances, the North Dakota probate court may have to be satisfied with such a document.

(ii)     Testate (Will) Probate Opened in Another State

If the decedent died testate with a Will, and a probate file is open and active in the state of the decedent’s domicile – other than North Dakota – a Petitioner may submit the following documentation to the North Dakota Court in an Ancillary probate in North Dakota proceeding:

Authenticated or certified copies of the Letters Testamentary,

and

Authenticated or certified copies of:

1. The Last Will and Testament,
   and
2. The Order admitting the Last Will and Testament to Probate and Appointing the Personal Representative.

from the other state’s probate court, together with:

1. A North Dakota probate court form attesting to the following facts in an Ancillary probate in North Dakota proceeding:
   • the death of the decedent;
   • the decedent’s state of domicile at the time of his or her death;
   • the decedent’s ownership of real property in North Dakota;
   • the appointment of a personal representative of the decedent’s estate in the state where the decedent was domiciled at the time of his or her death;
     and
   • that there is neither
     • a current administration of the decedent’s estate in North Dakota,
       nor
     • any petition for such administration pending.
2. A proposed North Dakota Court Order authorizing the personal representative of the decedent’s estate appointed in the state where the decedent was domiciled at the time of his or her death to exercise the powers of a local representative in North Dakota.

In certain circumstances, the Petitioner in an Ancillary probate in North Dakota proceeding may also want to separately seek the admittance of the Will to probate in North Dakota pursuant to a North Dakota probate proceeding – thereby establishing its validity under North Dakota law – in order to better support the distribution by the domiciliary foreign personal representative of the North Dakota property of the estate.

Separately admitting the Will to probate in North Dakota can be accomplished pursuant to an informal probate proceeding – which generally does not require a hearing.

However, the North Dakota probate court may require that an authenticated copy of the Will be filed with the court, and not just a certified copy.

If More Than 3 Years Since the Date of Death

Decedent’s Will Executed;
Previous Testate Proceeding in Another State

 May Proceed Informally in North Dakota

If:

• it has been over three years since the date of death,
  and
• the decedent’s Will has been probated previously in the state of the decedent’s domicile,

a petitioner may proceed informally in North Dakota without the necessity of a court hearing, providing that the following documents are provided to the North Dakota probate court:

• an authenticated copy of the Will which was admitted to probate in the state of the decedent’s domicile at the time of death,
• an authenticated copy of the Court Order admitting the Will to probate in the state of the decedent’s domicile at the time of death,
  and
• an authenticated copy of the Letters Testamentary from the probate court in the state of the decedent’s domicile at the time of death.

Decedent’s Will Executed;
No Previous Testate Proceeding in Another State

Must Proceed Formally in North Dakota

If it has been over three years since the date of death,

and

the decedent’s Will has never been probated in any state, then:

• a petitioner must formally petition for probate of the decedent’s Will in North Dakota,
• a hearing date must be scheduled by the Court,
• publication of the notice of hearing will be required,
  and
• appropriate notices mailed to all interested persons by the Petitioner.

Unless contested, North Dakota probate court hearings are typically not attended by anyone – other than the judge and court staff – including the petitioner and his or her attorney.

Relatively few North Dakota Probate Court hearings are contested.

Upon appointment, the powers of the Personal Representative will generally be limited to conveying the real property of the estate to the persons who are entitled to the ownership thereof.

No Decedent’s Will Executed;
No Previous Intestate Proceeding in Any Other State

May Proceed Either Formally, or Informally in North Dakota

If it has been over three years since the date of death,

and

no one has been able to locate any Will which may have been executed by the decedent

and

there has been no previous intestacy proceeding in any state,

then a petitioner may proceed in North Dakota either:

• for informal appointment of a personal representative without a hearing – but with all appropriate notices sent,
  or
• for formal appointment of a personal representative , in which case:
  • a hearing date must be scheduled by the Court,
  • publication of the notice of hearing will be required,
    and
  • appropriate notices mailed to all interested persons by the Petitioner.

When a decedent dies without a Will, there will be no effective difference between:

• a personal representative appointment procedure commenced more than three years after the date-of-death,
  and
• a regular personal representative appointment procedure which had been commenced within three years of date-of-death,

with the exception that if it has been over three years since the date of death, the formal Petition or informal Application for appointment of a personal representative must contain a statement similar to following:

No proceeding concerning the succession or estate administration has occurred within the three year period after the decedent’s death.

Issuance of Letters of Authority

Regardless of whether the Petitioner proceeds:

• informally without a hearing,
  or
• formally with a hearing,

if it has been over three years since the date of the decedent’s death, any personal representative Letters of Authority issued by a North Dakota Court:

• will be restricted in scope to supporting the transfer of any real property owned the decedent at death,
  and
• must contain a statement similar to the following:
  

  The Personal Representative has no right to possess estate assets . . . beyond that necessary to confirm title to the assets in the successor to the estate, and claims other than expenses of administration may not be presented against the Estate.

Ancillary Probate in North Dakota – Authority of the Personal Representative

A domiciliary foreign personal representative – the personal representative of the decedent’s estate appointed in the state where the decedent was domiciled at the time of his or her death – who has satisfied North Dakota’s evidentiary requirements:

• may exercise, as to assets in North Dakota, all powers of a local personal representative,
  and
• may maintain actions and proceedings in North Dakota, subject to any conditions imposed upon nonresident parties generally.

in an Ancillary Probate probate in North Dakota proceeding.

The Letters of Authority evidencing the authority of the domiciliary foreign personal representative would be those issued by the probate court of the state of the decedent’s domicile at the time of death.

However, in order to support the authority of the domiciliary foreign personal representative to convey the real property interests of the decedent in an Ancillary probate in North Dakota proceeding, the letters of authority must be certified on or after the date of the Personal Representative’s Deed of Distribution.

Unlike some states, North Dakota probate courts will not issue Ancillary Letters of Authority.

Determination of Heirship;

Whether or not More Than 3 Years Since the Date of Death

If the decedent had no Will, an interested person may petition for a Determination of Heirship – a procedure in which the petitioner requests the Probate Court’s determination of the decedent’s legal heirs, and

• upon the recording of a certified copy of the Order Determining Heirship,
• such Order Determining Heirship will have the effect of providing evidence of title to the North Dakota real property formerly owned by the decedent – which since the decedent’s death, has been owned by the decedent’s legal heirs.

Determination of Heirship proceedings in North Dakota were used more frequently in the past than they are today, and may not even be available in certain counties.

Prior to July 1, 1975

Prior to July 1, 1975, the recording of a certified copy of a Decree of Distribution (Order Determining Heirship), was sufficient to transfer the decedent’s title in a real property interest to the persons identified in the Decree of Distribution as being entitled to receive such interest.

At that time, if the personal representative of the estate conveyed the decedent’s title in the real property interest on behalf of the estate to the persons identified in the Decree of Distribution as being entitled to receive such interest, a certified copy of the order of the county court confirming the conveyance was required to be recorded.

However, the required procedures changed on July 1, 1975 when the Uniform Probate Code became effective in North Dakota.

After June 30, 1975

After June 30, 1975, the execution, delivery, and recording of a Personal Representative’s Deed of Distribution became the preferred method of transferring the decedent’s title in real property interests to the persons identified in the Decree of Distribution as being entitled to receive such interests.

The ready availability of informal appointment proceedings which do not require a hearing, combined with the general preference for the recording of a Personal Representative’s Deed of Distribution over a Decree of Distribution, has led to the diminished use of the Decree of Distribution procedure.

However, when a determination of the identity of the decedent’s legal heirs is either difficult, or subject to some doubt, North Dakota Courts can be requested to issue an Order determining the heirs – Order Determining Heirship – either pursuant to the Decree of Distribution procedure, or in conjunction with a Formal intestacy procedure.

Ancillary Probate in North Dakota – North Dakota Supreme Court

In 2017, the North Dakota Supreme Court confirmed the limitations on the powers of a domiciliary foreign personal representative in North Dakota with respect to real estate, by providing in part as follows:

[¶23] Chapter 30.1-24, N.D.C.C., defines the powers of foreign personal representatives in this state. Under N.D.C.C. § 30.1-24-06,

“[a] domiciliary foreign personal representative who has complied with section 30.1-24-05 may exercise, as to assets in this state, all powers of a local personal representative and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.”

Section 30.1-24-05, N.D.C.C., provides for proof of authority of a foreign personal representative, and states:

If no local administration or application or petition for local administration is pending in this state, a domiciliary foreign personal representative may file with a court in this state, in a county in which property belonging to the decedent is located, authenticated or certified copies of the person’s appointment and of any official bond the person has given, and the court shall enter an order establishing the filing of the copies.

Without first filing certified copies of appointment and any bond, a foreign personal representative lacks power to convey real property located in this state.

Stuber v. Engel, 2017 ND 198

Conclusion – Ancillary Probate in North Dakota

Either:

• an Ancillary Probate in North Dakota proceeding,
  or
• an original probate administration in North Dakota,

may be required in the event that a non-North Dakota resident dies owning an interest in North Dakota real property – including mineral rights – which was:

• not titled in joint tenancy,
  and
• not subject to a North Dakota Transfer on Death Deed.

For information on North Dakota Transfer on Death Deeds, see www.northdakotatransferondeathdeeds.com

If the decedent had no Will, an interested person may – in certain counties – petition for a Determination of Heirship.

Whether you reside in North Dakota, California, Minnesota, or any other state, if you had a relative who died owning mineral rights in North Dakota which have not yet been properly settled, contact Minnesota and North Dakota attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

An Ancillary Probate in North Dakota proceeding may be a viable option.

Gary C. Dahle has represented clients from the countries of Canada, Norway, and Sweden, and the states of Alabama, Arizona, California, Colorado, Connecticut, Florida, Idaho, Illinois, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Tennessee, Texas, Virginia, Washington, and Wisconsin in the United States, with respect to North Dakota mineral rights and probate issues in various North Dakota Counties.

Attorneys not licensed in North Dakota are invited to refer the North Dakota portion of the probate estate they are associated with to Minnesota and North Dakota attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Minnesota and North Dakota attorney Gary C. Dahle does not represent oil companies – only owners of North Dakota mineral and royalty interests, and is currently accepting new clients with respect to Ancillary probate in North Dakota proceedings.

Ancillary probate in North Dakota