North Dakota Informal Probate

North Dakota Informal Probate Commencement

There are two types of probate commencement procedures in North Dakota:

North Dakota Formal Probate – a probate commencement procedure which requires a court hearing before a judge – after notice of the hearing has been provided to all interested parties, and published in a legal newspaper in the North Dakota County in which the hearing is to be held; and
North Dakota Informal Probate – a quasi-judicial probate commencement procedure which only requires the approval and signature of a judicial officer – without any requirement for a hearing, or advance written notice to any interested party.

While the North Dakota Informal Probate procedure is more commonly used, the North Dakota Formal Probate procedure will be required in certain situations – including when neither the original Will, nor any certified copy of the Will admitted to probate in another state, can be located and filed in the North Dakota probate court.

North Dakota Informal Probate – Court Filing Fee

The court filing fee for the commencement of either a North Dakota Informal Probate proceeding, or a North Dakota Formal Probate proceeding, is currently the same.

Notice Requirements

Regardless of whether the North Dakota Informal Probate procedure, or the North Dakota Formal Probate procedure, is used:

the applicant with respect to a North Dakota Informal Probate procedure, and
the petitioner with respect to a North Dakota Formal Probate procedure,

must give notice of the probate proceeding to certain interested persons.

However, the timing of the notice differs depending on whether it is a North Dakota Informal Probate procedure, or a North Dakota Formal Probate procedure.

Notice must be provided prior to the appointment by the Court of a Personal Representative in a North Dakota Formal Probate procedure.

However, notice is provided after the appointment by the Court of a Personal Representative in a North Dakota Informal Probate procedure.

North Dakota Informal Probate Proceedings

A North Dakota Informal Probate proceeding is commenced by the filing with the probate court of an Application, prepared by or on behalf of an applicant, with respect to:

the informal appointment of one or more personal representatives by the probate court, and
the acceptance by the probate court of a particular Will being offered for informal probate when the decedent died testate.

Testate (Will) – Probate Never Opened in Another State

If the decedent died testate with a Will, but a probate file was never opened in any other state, the decedent’s original Will must be filed with the North Dakota probate court.

Testate (Will) – Probate Opened in Another State

If the decedent died testate with a Will, and the decedent’s original Will was filed admitted to probate in the state of the decedent’s domicile, an applicant for the Informal Probate of the Will in North Dakota may submit the following documentation to the North Dakota Court:

Authenticated copies of:

The Last Will and Testament, and

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

from the other state’s probate court.

Even if the decedent’s Will has already been admitted to probate in the state of the decedent’s domicile at death, admitting the decedent’s Will to probate in North Dakota will provide the benefit of establishing its validity under North Dakota law – and thereby confirming the identity of the Will devisees who are entitled to receive the decedent’s North Dakota property interests.

Application for North Dakota Informal Probate

N.D.C.C. 30.1-14-01 identifies the required contents of any application for informal probate in North Dakota, by providing in part as follows:

Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following:

(1)     A statement of the interest of the applicant.

(2)     The name and date of death of the decedent,

the decedent’s age, and

the county and state of domicile at the time of death, and

the names and addresses of the spouse, children, heirs, and devisees, and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant.

(3)     If the decedent was not domiciled in the state at the time of death, a statement showing venue.

(4)     A statement identifying and indicating the address of any personal representative of the decedent appointed in this state or elsewhere whose appointment has not been terminated.

(5)     A statement indicating whether the applicant has received a demand for notice, or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere.

(6)     A statement that the time limit for informal probate or appointment under this chapter has not expired because three years or less have elapsed since the decedent’s death, or, if more than three years from the death have elapsed, circumstances described in section 30.1-12-08 have occurred authorizing tardy probate or appointment.

An application for informal probate of a will shall state the following, in addition to the statements required by subdivision a:

(1) That the original of the decedent’s last will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application.

(2) That the applicant, to the best of the applicant’s knowledge, believes the will to have been validly executed.

(3) That after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent’s last will.

North Dakota Informal Probate – Devise

N.D.C.C. 30.1-01-06(11) defines the term devise, by providing as follows:

“Devise“, when used as a noun, means a testamentary disposition of real or personal property, and when used as a verb, means to dispose of real or personal property by Will.

North Dakota Informal Probate – Devisees

N.D.C.C. 30.1-01-06(12) defines the term devisee, by providing as follows:

“Devisee“ means a person designated in a will to receive a devise.

In the case of a devise to an existing trust or trustee, or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.

Therefore, since a devisee is a person designated in a Will to receive a devise,

when there is a devise to a trust or trustee,
such trust or trustee is the devisee, and not the beneficiaries of the trust.

North Dakota Informal Probate – Priority for Appointment

N.D.C.C. 30.1-13-03 identifies that the priority of persons entitled to appointment as personal representative in a North Dakota Informal Probate proceeding shall be in the following order:

A personal representative appointed by a court of the decedent’s domicile (the “domiciliary personal representative”), has priority over all other persons except in cases in which the decedent’s Will nominates:

one person to be the personal representative in the state of domicile, and

another person to be the personal representative in North Dakota – which almost never happens.

If the domiciliary personal representative nominates another person to be the North Dakota personal representative, such person shall have the same priority for appointment as the domiciliary personal representative.
The person with priority for appointment who is nominated as personal representative in a probated Will, including any person who is nominated by a power of nomination conferred in a Will.
The decedent’s surviving spouse who is also identified as a devisee in the decedent’s Will.
Other persons who are identified as devisees in the decedent’s Will.
The decedent’s surviving spouse who is not also identified as a devisee in the decedent’s Will.
The decedent’s other heirs.
A trust company.
Forty-five days after the death of the decedent, any creditor.

North Dakota Informal Probate – Waivers of Appointment

N.D.C.C. 30.1-13-03 identifies that if a person seeking appointment in a North Dakota Informal Probate proceeding does not have the highest priority for appointment, such person must file with the court certain Waivers of Priority for Appointment which have been obtained from all persons having a higher or equal right to the appointment.

Notice

Notice of the appointment of an applicant as the personal representative of the estate in a North Dakota Informal Probate procedure – pursuant to a Notice and Information to Heirs and Devisees document – must be provided to all interested persons by first class US mail within 30 days after such appointment has been made.

Forwarding of the North Dakota Informal Probate Application to the Department of Human Services

N.D.C.C. 50-06.3-07 identifies that every person exercising the powers of a North Dakota Personal Representative must provide notice of the appointment to the North Dakota Department of Human Services – in order that the agency can file a timely claim for reimbursement of any nursing home medical assistance benefits provided to the decedent.

Therefore, it would be advisable for the Personal Representative in a North Dakota Informal Probate proceeding who has provided such notice to file with the North Dakota Probate Court an Affidavit of Forwarding of Application to the North Dakota Department of Human Services in order to evidence the satisfaction of the Personal Representative’s duty to provide such notice.

North Dakota Informal Probate – North Dakota Personal Representative’s Deed of Distribution

North Dakota real property is distributed to the heirs or devisees in a North Dakota Informal Probate proceeding pursuant to the execution and recording of a Personal Representative’s Deed of Distribution – together with a certified copy of the Personal Representative’s Letters Testamentary or Letters of Administration – which have been certified by the Court on or after the date of the Personal Representative’s Deed of Distribution.

North Dakota Informal Probate – Closing the Estate

Pursuant to N.D.C.C. 30.1-23-04, any time after all of the claims have been paid and the assets of the estate distributed, the estate in a North Dakota Informal Probate proceeding may be closed by filing with the probate court a Sworn Statement of Personal Representative Closing the Estate.

Conclusion

If you would like assistance with respect to any North Dakota Informal Probate proceeding, contact North Dakota attorney Gary C. Dahle, at 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 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 Affidavits of Heirship

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.

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

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 – http://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 http://www.dahlelaw.com, https://www.NorthDakotaTransferonDeathDeeds.com, or https://www.dahlelawnorthdakota.com – does not constitute legal advice, or establish an attorney/client relationship.

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