North Dakota Wills

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The legislation governing Wills and estates in North Dakota is Title 30.1 Uniform Probate Code. The sections referred to on this page are all from this statute.

Making, altering or revoking a North Dakota Will

Making a Will in North Dakota

In order to make a valid North Dakota Will, the Probate Code requires:

  • The testator (person making the Will) to have attained the age of eighteen (18) years and to be of sound mind (30.1-08-01).

 

  • The Will must be in writing and signed by the testator. If the testator is incapable of signing, then he may direct another person to sign the Will at his direction and in his presence.

 

 

  • Witnessing by two individuals, a notary public or another person authorized to take acknowledgements by law.

 

North Dakota does recognize holographic Wills. A holographic Will does not need to be witnessed as long as the material portions and signature are in the testator’s handwriting (30.1-08-02). However, it is always advisable to draw up a valid North Dakota Last Will and Testament which complies with the execution and witnessing requirements, rather than rely on the more lax provisions.

Proving a Will through Probate before Death

Whilst still alive, a testator may apply to the North Dakota probate court for a judgment declaring the validity of his/her Will. The declaration will confirm the following requirements have been satisfied with respect to the Will (30.1-08.1-01):

  • The testator’s signature;

 

  • Number of witnesses and their signatures;

 

 

  • Testamentary capacity;

 

 

  • Ruling out any undue influence.

 

To take advantage of these proceedings, the testator will need to notify all beneficiaries named in the North Dakota Will and all of the persons who would otherwise benefit under the intestacy rules (30.1-10-03).

Altering a Will

To make changes to your North Dakota Last Will and Testament, it’s best to have a completely new fresh Will drawn up and to revoke the former document.

Revoking a Will

A Will can be revoked either by making a subsequent one or by physical destruction. Simply making another Will, will not automatically revoke the former. The subsequent document needs to expressly revoke all previous Wills and testamentary documents. If there is no express revocation, then only the inconsistent parts of the former North Dakota Will are revoked, leaving the remainder intact. This is unless it can be proved that the testator intended the subsequent Will to be revoked (which could be difficult to prove). If the later Will makes a complete disposition of the testator’s estate, then it will be presumed to replace, rather than supplement the former Will. Physically destroying a Will includes burning, tearing or cancelling. Lawyers recommend using both methods; express revocation in the new Will and physical destruction of the old. Situations which can revoke a North Dakota Will or part thereof include intentional homicide of the testator (30.1-10-03) and divorce (30.1-10-04). There are also circumstances whereby a revoked Will can be revived (30.1-08-09).

Excluding Spouse or Child from a North Dakota Will

Trying to disinherit a family member from your North Dakota Will? There are circumstances where the probate code provides entitlements to the spouse or children of a deceased North Dakotan resident regardless of the Will. These include:

  • Spouse’s Elective Share – the spouse has a right to take an elective share of fifty per cent (50%) of the augmented estate (30.1-05-01). The election must be made within nine months of the death or within six months after probate of the Will, whichever is the later 30.1-05-05.

 

  • Entitlement of Spouse where Will signed before Marriage – if the testator signed his North Dakota Last Will prior to marrying, the surviving spouse is entitled to a specified share of the estate. The entitlement will depend on whether the testator left a devise to his children (born before marriage to the surviving spouse and who are not also children of the surviving spouse) or to the children’s descendant/s, the amount devised to such children or their descendants under the Will, the amount the spouse would have received under intestacy laws and also the wording of the Will. These provisions are extremely technical, making it all the more important to have an attorney draft your Will (30.1-06-01).

 

 

  • Entitlements of Omitted Children – if you exclude a child from your North Dakota Will, they will be entitled to a portion of your estate unless it appears from your Will that the omission was intentional or unless you have already provided for that child outside the Will. Specific formalities need to be complied with when excluding a child and is not recommended without a lawyer (30.1-06-02).

 

 

  • Exempt Property – the spouse (or if there is no surviving spouse, then the deceased’s minor and dependent children) is entitled to household furniture, automobiles, furnishings, appliances and personal effects up to the value of $15,000. This entitlement is in addition to the homestead, the elective share and also in addition to any share received under the decedent’s North Dakota Will or by intestate succession (30.1-07-01).

 

 

  • Maintenance – whilst the estate is being administered, the court may allow a reasonable amount to support the spouse and minor and dependent children (30.1-07-02).

 

 

  • Homestead – a person cannot dispose of the homestead estate in his/her Will. The homestead estate is the right to use, control, possess and earn income from the deceased’s home (30-16-01). The term homestead is defined the land, buildings and improvements on the property where the deceased was residing at the time of death, up to the value of $100,000 (47-18-01). The surviving spouse is entitled to the homestead estate up until he/she dies or remarries. If there is no surviving spouse or he/she dies before the decedent’s youngest child reaches majority, then the deceased’s minor children are entitled to the homestead estate up until the youngest attains majority (30-16-02). The decedent is free to dispose of the balance homestead in his/her North Dakota Last Will and Testament (47-18-29) & (30-16-04).

 

In order to disinherit your child or spouse, you should speak to an attorney. You may be required to make changes to your financial circumstances and insert specially drafted clauses into your Will. You cannot exclude these statutory entitlements simply by failing to mention your spouse/child in the Will itself.

North Dakota Will Probate

Once the testator dies, a person having custody over the Will must deliver the original to a person who can secure probate or to the appropriate court. The handover must be done with reasonable promptness; otherwise they may be liable to any aggrieved person who has sustained damage as a result of the delay. If the custodian refuses to hand over the Will, they risk being penalized for contempt of court (30.1-11-02). Probate of a North Dakota Will can be done informally together with informal appointment of a personal representative (30.1-14-01). The necessary forms are provided by the court. No notice is required with informal proceedings. If the Will has been lost, destroyed (without revocation) or is otherwise unavailable, then formal testacy proceedings will need to be started in order to prove the Will. (30.1-15-02.1). If there is any other question as to whether the decedent left a valid North Dakota Last Will & Testamentor any objections, then these must also be litigated via formal testacy proceedings. An interested person has the right to start formal testacy proceedings and petition for any of the following orders (30.1-15-02.):

  • To formally probate a Will, even if the same document or a conflicting North Dakota Will has been informally probated;

 

  • To appoint a personal representative;

 

 

  • To set aside or prevent an informal probate of a Will;

 

 

  • An adjudication that the decedent died intestate (without a Will), with orders to appoint an administrator in intestacy.

 

North Dakota Estate Tax

Whilst the state does not impose an inheritance tax, North Dakota still has an estate tax. The calculation is based on the gross estate, limited to the federal credit for state death taxes. If the gross estate meets the federal estate tax return filing requirement, then the personal representative must file a North Dakota estate tax return (form 54-91) and, if there is tax due, a situs affidavit (form 54.29). The return must be filed with the office of state tax commissioner for North Dakota within 15 months of the death.

North Dakota Will Contest

Any interested person may contest a North Dakota Will, even if it has been informally probated (30.1-15-01.2). In addition to other specified facts, that person must state in their pleadings their objections to probate of the Will. They may also demand a jury trial 30.1-15-04. Where the Will is being contested due to its execution (signing) (30.1-15-06):

  • If self-proved, the North Dakota Last Will and Testament may be set aside if there is evidence of fraud or forgery;

 

  • If the Will is notarized but not self-proved, there is a presumption that it complies with execution requirements. This presumption is rebuttable.

 

 

  • A Will which has been witnessed but not notarized or self-proved can be proved as to proper execution by the testimony or affidavit of at least one of the attesting witnesses.

 

A North Dakota Will can also be contested for any of the following reasons (30.1-15-06):

  • Lack of testamentary intent or capacity

 

  • Undue influence

 

 

  • Fraud

 

 

  • Duress

 

 

  • Mistake

 

 

  • Revocation

 

 

  • Any other cause affecting its validity.

 

An “interested persons” is defined as including all heirs (individuals who would be entitled to a share if the deceased died intestate), devisees, beneficiaries (persons mentioned in the Will) and the decedent’s children, spouse, creditors and any other person having a property right in or claim against the estate (30.1-01-06).

What happens if I die without a Will?

If a person dies without making a valid North Dakota Will, the intestate succession rules will determine who will receive that individual’s assets. The intestate succession laws will also apply to any property not disposed of by the Will (although this is a rare occurrence since most Wills deal with the whole or residue of the estate). A testator can also use the North Dakota Last Will and Testamentto exclude any person or class of persons from inheriting under intestacy laws. The order of distributing intestate estates is as follows:

  • If the deceased left no children or parents – the spouse will inherit the entire estate;

 

  • If the deceased left no parents but left children who are also children of the surviving spouse and the surviving spouse has no other children – the spouse is entitled to the whole estate;

 

 

  • If the decedent left parents but no children – the spouse is entitled to the first $300,000 plus three quarters of the remaining estate;

 

 

  • If decedent left children who are also children of the surviving spouse and the surviving spouse also has another child/children outside of the deceased – the spouse will receive the first $225,000 plus one half of the balance;

 

 

  • If the decedent left children who are not children of the surviving spouse, then the surviving spouse receives the first $150,000 plus one half of the rest.

 

 

  • Any amount not inherited by the spouse is to be distributed:
    • Firstly between the decedent’s children (or grandchildren if a child has predeceased);

     

  • If there are no surviving children or grandchildren, then to the decedent’s parents equally or to the surviving parent.

 

Examples of how property is distributed if a resident dies without a North Dakota Will: Husband dies, no will, no children & no parents: Helen’s husband, Daniel, dies without a Will. His estate is worth $400,000. They have no children and neither of Daniel’s parents has survived him. Who gets what? Helen – $400,000. Husband dies, no will, two children & no parents: Lisa’s husband dies without a Will, leaving a $400,000 estate. They have two children together. His parents predeceased. Who gets what? Lisa: $400,000. Husband dies, no will, two children, wife has child from another partner: Amy’s husband dies without a Will. They have two children together. Amy also has a child from a former partner. The estate is worth $400,000. Who gets what? Amy – $312,500, Amy & Phil’s two children – $43,750 each. Wife dies, no will, no children together, deceased has child from another partner: Mike’s wife Julie dies without a will. Her estate is $400,000. They have no children together. Julie has a child from a former partner. Who gets what? Mike – $275,000, Julie’s child – $125,000. Wife dies, no will, no children but deceased left a surviving parent: Glenn’s wife Jessica passed away without a will, leaving an estate of $400,000. They had no children. Jessica’s mother is still alive. Who gets what? Glenn – $375,000, Jessica’s mother – $25,000.

North Dakota Will Forms

Note: Before making a North Dakota Will, we recommend you research information on preparing, signing and witnessing a last Will and Testament, including:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample will forms available as free downloads (printable PDF documents).

North Dakota Will Form: Married with adult children
North Dakota Will Form: Married with adult and/or minor children, includes a trust for minor children
North Dakota Will Form: Married with no children

North Dakota Will Form: Single with adult children
North Dakota Will Form: Single with adult and/or minor children, includes a trust for minor children
North Dakota Will Form: Single with no children

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