North Dakota Transfer on Death Deed.

North Dakota Transfer on Death Deed

In 2011, the North Dakota legislature enacted its version of the Uniform Real Property Transfer on Death Act (hereinafter, the “North Dakota Transfer on Death Deed Act”) – authorizing the execution of a North Dakota Transfer on Death Deed with respect to North Dakota real property – including mineral rights.

North Dakota Transfer on Death Deed

A North Dakota Transfer on Death Deed (“North Dakota TODD”) may be used to avoid probate with respect to the North Dakota real property interests identified in the North Dakota Transfer on Death Deed.

While North Dakota may have been the first state to adopt the Uniform Real Property Transfer on Death Act, at least 12 other states have subsequently adopted some form of the Uniform Real Property Transfer on Death Act – including Texas, which like North Dakota – has considerable mineral assets.

North Dakota Transfer on Death Deeds – Application

N.D.C.C. 30.1-32.1-14 identifies that the North Dakota Transfer on Death Deed Act applies to a North Dakota TODD made before, on, or after August 1, 2011, by a transferor dying on or after August 1, 2011.

Therefore, in the event that a North Dakota TODD was executed prior to August 1, 2011 – which was the effective date of the North Dakota Transfer on Death Deed Act, it should be effective for its intended purposes, providing that:

• it was recorded prior to the death of the transferor, and
• the transferor died after August 1, 2011.

North Dakota TODD – Effect During the Transferor’s Life

N.D.C.C. 30.1-32.1-09 identifies that during the lifetime of the transferor, a North Dakota transfer on death deed does not:

1. Affect an interest or right of the transferor or any other owner,

including the right to transfer or encumber the property;

2. Affect an interest or right of a transferee,

even if the transferee has actual or constructive notice of the deed;

3. Affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even if the creditor has actual or constructive notice of the deed;

4. Affect the transferor’s or designated beneficiary’s eligibility for any form of public assistance;

5. Create a legal or equitable interest in favor of the designated beneficiary; or

6. Subject the property to claims or process of a creditor of the designated beneficiary.

North Dakota Transfer on Death Deeds – Legal Effect During Transferor’s Life

N.D.C.C. 30.1-32.1-09, and Title Standard 12-15 of the North Dakota State Bar Association’s real property “title standards“, identify that a North Dakota Transfer on Death Deed:

• conveys no interest in the Transfer on Death Property to the designated beneficiary, and
• does not affect any interest or right of the transferor, or any other owner, in the Transfer on Death Property,

until the death of the transferor – providing that such transferor survives the death of all other joint owners.

North Dakota TODD – Death of the Transferor

N.D.C.C. 30.1-32.1-10 identifies a few general rules – subject to a number of exceptions – which will apply upon the death of the transferor with respect to a real property interest that is the subject of a North Dakota TODD, which was owned by the transferor at death (hereinafter, the “Transfer on Death Property“.)

North Dakota TODD – Survivorship Requirement

N.D.C.C. 30.1-32.1-10, and Title Standard 12-15 identify that the designated beneficiary must survive the death of the transferor in order to be entitled to any rights in the Transfer on Death Property identified in a Transfer on Death Deed.

North Dakota TODD – Survival by a Designated Beneficiary

The Transfer on Death Property identified in a North Dakota Transfer on Death Deed will be transferred to the designated beneficiary identified in the North Dakota TODD only if the designated beneficiary survives the death of the transferor.

North Dakota TODD – Survival by Multiple Designated Beneficiaries

If there is more than one designated beneficiary identified in a Transfer on Death Deed, the Transfer on Death Property will be transferred to those designated beneficiaries who survive the death of the transferor in equal and undivided shares as tenants in common – with no rights of survivorship – unless the Transfer on Death Deed provides otherwise.

Therefore, unless a North Dakota TODD provides to the contrary, if the North Dakota Transfer on Death Deed identifies two or more designated beneficiaries to receive concurrent interests in the Transfer on Death Property upon the death of the transferor, the share of any designated beneficiary which lapses, or fails for any reason:

• is transferred to the other designated beneficiary or designated beneficiaries, pursuant to N.D.C.C. 30.1-32.1-10(1)d,
• in proportion to the interest of each in the remaining part of the Transfer on Death Property held concurrently.

Conclusion – North Dakota TODD

Owners of North Dakota real property interests – including mineral rights – who are contemplating transferring such interests pursuant to a North Dakota Transfer on Death Deed are invited to contact Minnesota and North Dakota attorney Gary C. Dahle for assistance.

Attorneys not licensed in Minnesota or North Dakota are invited to refer possible Minnesota or North Dakota TODD issues to Minnesota and 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

Topics of Interest – North Dakota Ancillary Probate

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 Affidavits of Heirship

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 2019 – 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