North Dakota Affidavit of Heirship – Proof of Death and Heirship

North Dakota Affidavit of Heirship - Proof of Death and Heirship

North Dakota Affidavit of Heirship – Proof of Death and Heirship

A legal document variously identified as an Affidavit of Heirship – Proof of Death and Heirship, has historically been used in various states in order to evidence the transfer of mineral rights to the surviving heirs of a decedent.

Devolution of Property at Death

N.D.C.C. Section 30.1-12-01 identifies the general rule that subject to certain limitations, “title” to a decedent’s property devolves at death to the decedent’s successors, by providing in part as follows:

Upon the death of a person, the decedent’s real and personal property devolves to the persons to whom it is devised by the decedent’s last will or . . . in the absence of testamentary disposition, to the decedent’s heirs, . . . , subject

  • to homestead allowance, exempt property, and family allowance,
  • to rights of creditors, elective share of the surviving spouse, and
  • to administration.

In 2015, the North Dakota Supreme Court in the Estate of Johnson, 2015 ND 110, identified the legal status of title to real property upon the death of a decedent, by providing in part as follows:

title to property passes to a decedent’s heirs or devisees at death,

subject to a personal representative’s broad powers over the title for administration purposes.

In the absence of the second clause in the above cited opinion, the first clause would support the use of a North Dakota Affidavit of Heirship – Proof of Death and Heirship in order to recognize the transfer of mineral rights to the surviving heirs identified in the North Dakota Affidavit of Heirship – Proof of Death and Heirship document without the necessity of a probate proceeding.

However, the second clause in the above cited opinion recognizes that the estate’s interests in the North Dakota mineral rights must be released to the decedent’s successors by the Personal Representative, pursuant to the execution, delivery, and recording of a Personal Representative’s Deed of Distribution.

Proof of Death and Heirship – Historical Use

In those situations in which the decedent never executed a Last Will and Testament, oil companies historically relied upon the facts recited in a North Dakota Affidavit of Heirship – Proof of Death and Heirship in order to recognize the transfer of mineral rights to the surviving heirs identified in the North Dakota Affidavit of Heirship – Proof of Death and Heirship document – without requiring:

  • the appointment of a Personal Representative for the estate, and
  • the execution and recording of a Personal Representative’s Deed of Distribution releasing such mineral rights to the surviving heirs.

However, such a practice is becoming less common in North Dakota.

North Dakota Affidavit of Heirship – Proof of Death and Heirship – Current Practice in North Dakota

Whatever the current practice in other states, oil companies operating in North Dakota may no longer be willing to recognize the legal effectiveness of a North Dakota Affidavit of Heirship – Proof of Death and Heirship in order to evidence the transfer of mineral rights to the surviving heirs identified in the North Dakota Affidavit of Heirship – Proof of Death and Heirship document.

Correspondence sent in 2017 by a North Dakota oil company to the surviving heirs of a decedent with respect to North Dakota mineral rights provided in part as follows:

TO: the heirs of . . . .,

. . . Oil and Gas Corporation is producing various wells located in . . . County, North Dakota.

We are in the process of curing several title issues referenced in our Title Opinions before distributing proceeds.

The . . . County records currently reflect title in the name of . . . .

An Affidavit of Heirship does not convey record title interest.

Prior to the distribution of revenues for these various wells, . . . Oil and Gas Corporation requires the Estate of . . . . be probated in . . . County, North Dakota.

We recommend that you contact a North Dakota attorney in order to address this title requirement.

When probate has been completed, please send us a copy of the

  • Letters of Administration and
  • Personal Representative’s Deed of Distribution

that has been recorded in . . . County, and we will amend our records accordingly.

The above referenced Letters of Administration can be obtained pursuant to either a North Dakota Formal Probate appointment proceeding, or a North Dakota Informal Probate appointment proceeding.

Occasionally, oil companies operating in North Dakota may recognize the effectiveness of a North Dakota Affidavit of Heirship – Proof of Death and Heirship to evidence the transfer of mineral rights to the surviving heirs when:

  • the decedent’s heirs are easily determinable, and
  • the value of the mineral rights is relatively small.

In such cases, the oil companies’ willingness to utilize a North Dakota Affidavit of Heirship – Proof of Death and Heirship may be more related to the oil companies’ desires to reduce their own administrative costs, than by any desires to simplify matters for the decedent’s successors to the mineral rights.

Effect of a Probated Will on North Dakota Mineral Rights

If North Dakota mineral rights were devised to individuals other than the decedent’s heirs pursuant to a Last Will and Testament, then:

  • the use of a North Dakota Affidavit of Heirship – Proof of Death and Heirship should be inappropriate – since such a document would by definition only recognize the interests of intestate heirs, and not Will devisees,
  • a North Dakota probate proceeding may be required in order to admit the Last Will and Testament to probate in North Dakota, and
  • a Personal Representative’s Deed of Distribution must be executed and recorded releasing such mineral rights to the devisees identified in the Last Will and Testament.

Unless the decedent’s Will is admitted to probate in North Dakota, a title examiner may reasonably conclude that any North Dakota mineral rights passed to, and should be distributed to:

  • the decedent’s heirs, according to the laws of intestate succession in North Dakota, and
  • not to the devisees identified in the decedent’s Will which was admitted to probate in the state in which the decedent resided at the time of death.

Conclusion

If the use of a North Dakota Affidavit of Heirship – Proof of Death and Heirship will not resolve certain transfer of mineral rights issues, please contact North Dakota attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com for assistance with any necessary North Dakota Formal Probate proceeding, or North Dakota Informal Probate proceeding.

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.

http://www.legis.nd.gov/general-information/north-dakota-century-code

Attorneys not licensed in North Dakota are invited to refer possible North Dakota probate issues to Minnesota and North Dakota attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Topics of Interest – North Dakota Intestate Succession.

Topics of Interest – North Dakota Inheritance Laws

Topics of Interest – North Dakota Intestate Estate

Topics of Interest – North Dakota Foreign Personal Representative

Topics of Interest – North Dakota Subsequent Administration

Topics of Interest – North Dakota Mineral Rights.

Topics of Interest – North Dakota Transfer on Death Deeds

Topics of Interest – North Dakota Informal Probate

Topics of Interest – North Dakota Formal Probate

Topics of Interest – North Dakota Probate Settlements

Topics of Interest – Probating a Will Copy in North Dakota

Topics of Interest – North Dakota Probate Closing

Topics of Interest – Newly Discovered North Dakota Property

Topics of Interest – North Dakota Joint Tenancy

Topics of Interest – North Dakota Mineral Rights Purchase Offers

Related issues – see Minnesota Probate.

Copyright 2017 – All Rights Reserved

Gary C. Dahle – Attorney at Law

2704 Mounds View Blvd.

Mounds View, MN 55112

Phone:  763-780-8390   Fax:     763-780-1735      gary@dahlelaw.com

http://www.legis.nd.gov/general-information/north-dakota-century-code

 Legal Disclaimer – North Dakota Affidavit of Heirship

Information provided herein is only for general informational and educational purposes. North Dakota’s version of the Uniform Probate Code involves many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with a North Dakota attorney of your choice. Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of North Dakota, and in the State of Minnesota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of North Dakota and Minnesota should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

Accessing the web sites of Gary C. Dahle, Attorney at Law – https://www.dahlelaw.com, https://www.NorthDakotaTransferonDeathDeeds.com, or https://www.dahlelawnorthdakota.com – may be held to be requests for information. However, the mere act of either providing information to Gary C. Dahle, Attorney at Law, or taking note of information provided on https://www.dahlelaw.com, https://www.NorthDakotaTransferonDeathDeeds.com, or https://www.dahlelawnorthdakota.com – does not constitute legal advice, or establish an attorney/client relationship.

Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation. If you are not a current client of Gary C. Dahle, Attorney at Law, please do not use the e-mail links or forms to communicate confidential information which you wish to be protected by the attorney-client privilege. Please use caution in communicating over the Internet. The Internet is not a secure environment and confidential information sent by e-mail may be at risk.

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