North Dakota Foreign Personal Representative

North Dakota Foreign Personal Representative

N.D.C.C. Section 30.1-01-06(19) defines a North Dakota foreign personal representative in the following manner:

“Foreign personal representative” means a personal representative appointed by another jurisdiction.

Therefore, a North Dakota foreign personal representative is a person who has been appointed as a personal representative of decedent’s estate in a state other than North Dakota.

Domiciliary Foreign Personal Representative

While the term domiciliary foreign personal representative is not defined in the North Dakota statutes, the term domiciliary is defined in Black’s Law Dictionary as follows:

“Of or relating to domicile”

and the term domicile is defined in the following manner:

The place at which a person is physically present and that the person regards as home.

Therefore, a domiciliary foreign personal representative is a personal representative appointed in the state of a decedent’s domicile at death.

North Dakota Personal Representative

N.D.C.C. Section 30.1-01-06(41) defines a North Dakota personal representative in the following manner:

“Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.

“General personal representative” excludes special administrator.

Therefore, the definition of a North Dakota foreign personal representative includes a person who has been appointed as a personal representative in a state other than North Dakota – for certain purposes – which do not always include the power to convey real property in North Dakota.

North Dakota Local Administration

N.D.C.C. Section 30.1-24-01(1) defines a North Dakota local administration in the following manner:

In chapters 30.1-24 and 30.1-25:

“Local administration” means administration by a personal representative appointed in this state pursuant to appointment proceedings described in chapters 30.1-12 through 30.1-23.

Therefore, a North Dakota local administration is a probate administration in North Dakota where the personal representative was appointed to such an office by a North Dakota court.

Technically, there would be no North Dakota ancillary probate proceeding if there was a North Dakota local administration, because there would be no North Dakota probate proceeding which was ancillary to, or subject to, a probate proceeding in a different state.

North Dakota Local Personal Representative

N.D.C.C. Section 30.1-24-01(1) defines the term North Dakota local personal representative in the following manner:

            “Local personal representative”

includes any personal representative appointed in this state pursuant to appointment proceedings described in chapters 30.1-12 through 30.1-23 and

excludes foreign personal representatives who acquire the power of a local personal representative pursuant to section 30.1-24-06.

Therefore, a North Dakota personal representative is a person who has been appointed to such an office by a North Dakota court.

Proof of Authority – North Dakota Foreign Personal Representative

N.D.C.C. Section 30.1-24-05 identifies the manner in which a North Dakota foreign personal representative can acquire the powers of a North Dakota local personal representative in order to be authorized to make a conveyance of North Dakota real property – including mineral rights – by providing in part as follows:

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.

Therefore,

  • if there is no North Dakota local administration, a North Dakota foreign personal representative who files with a North Dakota probate court authenticated or certified copies of the Letters Testamentary, Letters of General Administration, and Order of Appointment as Personal Representative issued by the probate court in the state of the decedent’s domicile – together with any authenticated or certified copy of the decedent’s Last Will and Testament,
  • is entitled to receive from the North Dakota probate court an Order identifying that such document copies have been filed with the court.

Under this procedure, there would be a North Dakota ancillary probate if there was no North Dakota local administration, because there would be a North Dakota probate proceeding which was ancillary to, or subject to, a probate proceeding in a different state.

Powers of a North Dakota Foreign Personal Representative

N.D.C.C. Section 30.1-24-06 identifies that:

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.

Therefore, a domiciliary personal representative who was has satisfied the N.D.C.C. Section 30.1-24-05 filing requirements in North Dakota will have the same authority to convey real property in North Dakota as a North Dakota local personal representative who has been appointed to such an office by a North Dakota court.

Stuber v. Engel, 2017 ND 198

In 2017, in Stuber v. Engel, 900 N.W.2d 230 (N.D. 2017), the North Dakota Supreme Court identified that a prerequisite to the exercise by a domiciliary foreign personal representative of the powers of a North Dakota local personal representative is a duty to file with a North Dakota Court authenticated or certified copies of his appointment as personal representative issued by the state(s) of the decedents’ domicile(s) at death.

In that case, a personal representative having been issued Letters Testamentary in both the state of Washington, and the state of Arizona, with respect to separate decedents, filed such Letters Testamentary in the North Dakota real estate records and purported to convey North Dakota mineral rights based upon his claimed authority under the Letters Testamentary issued in those other states.

However, both the District Court, and the North Dakota Supreme Court, declared that:

  • the domiciliary foreign personal representative had not satisfied the statutory requirements identified in N.D.C.C. Section 30.1-24-05 since the appointment documents had not been filed with a North Dakota Court,
  • and therefore had no authority in North Dakota to execute any Personal Representative Deeds of Distribution with respect to such estates:

[¶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.

Jurisdiction Over a North Dakota Foreign Personal Representative

N.D.C.C. Section 30.1-25-01 identifies that a North Dakota foreign personal representative who files documents with a North Dakota court in accordance with the requirements of N.D.C.C. Section 30.1-24-05 shall be subject to the jurisdiction of the North Dakota probate court:

A foreign personal representative submits personally to the jurisdiction of the courts of this state in any proceeding relating to the estate by: . . . Filing authenticated copies of the foreign personal representative’s appointment as provided in section 30.1-24-05;

North Dakota Real Property is Governed by North Dakota Law

In the 2017 Stuber v. Engel decision, the North Dakota Supreme Court confirmed its prior ruling that:

Real property located in North Dakota is governed by North Dakota laws.

            Stratton v. Rose , 484 N.W.2d 274, 279 (N.D. 1992).

Therefore, in order to have the power to convey North Dakota real property, including North Dakota mineral rights, a North Dakota foreign personal representative must first file certain documents with a North Dakota court.

In addition, the North Dakota Supreme Court identified that is commonly recognized in other states that:

[¶22] A personal representative derives his authority from the state which has jurisdiction over the property, and the administration of an estate in one state is independent of the administration in another state.

See Baker v. Cooper, 166 Md. 1, 170 A. 556, 558-59 (1934);

see also Johnson v. Powers , 139 U.S. 156, 157-61, 11 S.Ct. 525, 35 L.Ed. 112 (1891) (stating plaintiff cannot bring suit as a personal representative in New York when he never received letters of administration in New York, and letters issued in Michigan did not confer any power beyond the limits of that state);

Randall v. State , 223 Md.App. 519, 117 A.3d  91, 119 (2015) (stating a personal representative for a Maryland decedent owning real property in another state must abide by the law of the state in which the real property is located relating to the sale and transfer of the property).

North Dakota Local Administration

Rather than filing the required documents pursuant to N.D.C.C. Section 30.1-24-05 in order to acquire the powers of a North Dakota local personal representative, a person who might otherwise be a North Dakota foreign personal representative can petition a North Dakota court for appointment as a North Dakota local personal representative in a North Dakota local administration pursuant to N.D.C.C. Section 30.1-24-01(1).

Such a process may actually be more advisable than the North Dakota ancillary probate procedure identified in N.D.C.C. Section 30.1-24-05.

Conclusion – North Dakota Foreign Personal Representative

If you need any assistance with respect to a North Dakota foreign personal representative acquiring the powers of a North Dakota local personal representative in order to convey North Dakota mineral rights in a probate proceeding, contact attorney Gary C. Dahle, 763-780-8390, or gary@dahlelaw.com.

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 Ancillary Probate

Topics of Interest – North Dakota Intestate Succession.

Topics of Interest – North Dakota Mineral Rights.

Topics of Interest – North Dakota Transfer on Death Deeds

Topics of Interest – North Dakota Affidavits of Heirship

Topics of Interest – North Dakota Formal Probate

Related issues – see Minnesota Probate.

Copyright 2022 – 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

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