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North Dakota Inheritance Laws

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A will, or a last will and testament, may be one of the most important legal documents you will create while you are still alive. It gives you power and total control over how the possessions you will be leaving behind are transferred to your kin when you die. It goes without saying that if you want to make sure that your estate is divided and distributed to your chosen heirs after your death, you must have a will. Just like in any other state, this holds true in North Dakota. 

However, writing an immediate and unplanned will is insufficient. The will should be properly written and executed in accordance with North Dakota inheritance laws for it to become valid and avoid future problems. 

Take the case of Allan Herbert Froemke and the estate he left behind. The informal probate of his will resulted in Terry Carter and Brenda Ciccone appealing a district court ruling. They contested several items in the will, such as Ciccone's $5,000 debt, the estate's farmhouse value, and the district court's misuse of power by ignoring important points brought forward in response to the personal representative's motions. 

If you have not written a will and are unfamiliar with North Dakota’s inheritance rules, this article can provide you with a quick overview and general knowledge about inheritance laws. The following information explains how to create a valid will. It elaborates on the inheritance rights of your surviving relatives, such as your children, spouse, siblings, and parents, whether you left a will or not. It also describes the legal processes involved in allocating your belongings upon your death.

What Happens if Someone Dies With a Will in North Dakota?

When a person passes away in North Dakota and leaves a valid will, the state classifies their estate as "testate," meaning that the estate's assets must be divided among the beneficiaries specified in the will.

To have a legal will in North Dakota, the testator — the individual making or who made the will — must be an adult of sound mind. A testator has a sound mind if they are capable of knowing the broad type and scope of the property they own. Additionally, the will needs to be:

  • In writing.

  • Signed by the testator or by another person under the testator's direction and in the testator's conscious presence.

  • Signed either:

    • in front of a notary public or another person designated by law as a witness or

    • by two or more people who signed the will during a reasonable amount of time.

Holographic wills, also known as handwritten wills, are also accepted as valid wills in North Dakota as long as the signer’s handwriting appears on the document and relevant pages.

Self-help tools are available for anyone to use to write their own will. As an alternative, they can work with an estate planning lawyer to create a will that complies with North Dakota laws.

In North Dakota, when a person leaves a will, the executor must follow the instructions in there to divide the estate. However, there are assets in the estate that do not need to go through probate. Examples of those assets are the following:

Small estate

If the decedent’s estate is worth less than $50,000, no real estate is subject to probate, no petition for the selection of a personal representative has been filed or approved in any jurisdiction, and a minimum of 30 days have passed since the death, beneficiaries may be able to bypass the probate procedures.

Bank account designations that become payable upon death

Without going through the probate court process, beneficiaries can obtain the payable-on-death designations straight from the bank.

Securities transfer-on-death registration

The beneficiary can inherit the decedent’s stocks and bonds directly by dealing with the broker themselves.

Real estate transfer-on-death deeds

Ownership of real estate covered by a transfer-on-death deed automatically passes to the named beneficiary upon the owner’s death.

Shared ownership

When one of the owners of a joint tenancy passes away, the remaining owner immediately inherits the property.

Living trusts

There will be no need for probate court procedures when successor trustees transfer living trusts to beneficiaries.

Contesting a Will

In North Dakota, a person opposing the terms of a will must meet certain legal requirements to have their case heard in court.

Beneficiaries of a previous will, beneficiaries of the current will, and individuals who are not beneficiaries but would receive assets if the judge rules the will is invalid are the only parties with legal standing to contest a will and file an inheritance claim. Examples of these parties are spouses, children, parents, grandparents, and siblings.

The following are the typical grounds for contesting a will:

  • When the testator made the will, they might have been under the influence of alcohol or drugs.

  • The testator was not mentally competent when they wrote the will.

  • The will was written while the testator was under duress, like physical assault or emotional manipulation.

  • The will lacks legal validity.

  • There is fraud in the will.

If someone intends to proceed with contesting a will in North Dakota, they need to go through the following procedure:

  1. Submit a will contest in the county where the decedent passed away.

  2. Prepare for hearings by gathering proof to back up allegations against the will.

  3. Accept a settlement amount or engage in a legal battle, where seeking the help of an  attorney may be necessary.

What Happens if Someone Dies Without a Will in North Dakota?

If an individual in North Dakota dies without a valid will, it is called dying intestate. In this case, the North Dakota intestate succession laws will apply to the estate they have left behind. Additionally, the estate might be required to go through the probate process.

Probate requires the appointment of an executor or personal representative to manage the estate of a deceased individual.

Probate Process

In North Dakota, the standard probate procedure involves the following steps:

  1. Filing a petition for probate: The first step in the probate process is to submit a petition to the correct North Dakota probate court.

  2. Notifying beneficiaries and heirs: It is necessary to formally give notice to beneficiaries and heirs after the probate process has begun. In addition, it is legally required that all interested parties be informed of the North Dakota probate procedure and be given the chance to raise any objections.

  3. Designating an executor or personal representative: Someone may volunteer as a personal representative in an intestate estate. If no one volunteers, the court will choose the executor, typically a local lawyer.

  4. Listing the assets of the estate: All of the estate’s assets must be located, cataloged, and valuated at this step.

  5. Managing taxes and debts: The personal representative is required to make sure that all estate taxes and debts are settled before any assets are given away to beneficiaries. This duty entails paying any outstanding estate taxes and submitting the deceased’s last income tax return.

  6. Taking care of real estate: Dealing with the real estate of the deceased’s estate can lengthen the probate process, as transferring real estate may require selling it first.

  7. Distribution of the remaining assets: Following the settlement of debts and assets, the beneficiaries may receive the remaining assets following North Dakota’s intestacy laws.

  8. Closing the estate: Upon fulfillment of all financial obligations, distribution of assets, and filing of required tax returns, the personal representative may request the court to close the estate. This last step includes giving a detailed account of each move made and the amount of money distributed during the probate process.

Spousal Rights

Common law governs how much the spouse of an individual in North Dakota will inherit if the latter dies without a will. The spouse will receive the following share of the intestate property:

Condition

Inheritance Right

The decedent had no surviving parents or descendants.

The spouse will receive all of the intestate property.

The decedent had surviving parents but no descendants.

The surviving spouse will receive the first $300,000 of the intestate possessions plus ¾ of the remaining amount.

The decedent left behind children, and the surviving spouse has no children from prior marriages.

The spouse will receive all of the intestate property.

The decedent left behind children, and the surviving spouse has children from prior marriages.

The first $225,000 of the intestate property, plus half of the remaining amount, will go to the surviving spouse.

The decedent left behind children who are not of the surviving spouse.

The first $150,000 of the intestate property, plus half of the remaining amount, will go to the surviving spouse.

Children’s Rights

The following are the inheritance rights of children in North Dakota:

Type of Child

Inheritance Right

Offspring born during marriage

They are automatically entitled to a portion of the intestate estate.

Offspring produced through assisted reproduction

They will inherit a share if their parent dies within the first two years of the child's life.

Child of a gestational carrier

The child born to a gestational carrier will receive a share if a court order established the parent-child relationship.

Adopted kids

They will inherit a share the same as that of the decedent’s biological offspring.

Children born after the decedent’s death

If the conceived children survive for no less than five days after the decedent’s death, they will receive a share.

Offspring conceived outside of marriage

As long as the child was not adopted or conceived through assisted reproduction of two other lawful parents, they will receive a portion of the estate.

Grandchildren

A grandchild’s share will only be given if the grandchild’s parents are already dead.

Kids given up for adoption

Those who were lawfully put up for adoption and adopted by another family will not be eligible for a share.

Stepchildren and foster children

Children in foster care and stepchildren who are not officially adopted will not get a share.

The Rights of Other Surviving Relatives

In North Dakota, if a person passes away without a surviving spouse and intestate, their children will inherit an equal portion of their state. If someone dies single and childless, their parents will inherit all the estate. If there are no surviving spouses, children, or parents, the grandparents or other descendants will inherit all the estate.

Estates With No Heirs

If an individual in North Dakota passes away without a will and has no known relatives, their assets will go to the state. The estate funds will be used to support schools. But since the laws are set up to give the property to anyone who is even loosely related to the decedent, this case rarely occurs.

Unique Situations in North Dakota Inheritance Law

Relatives conceived before the decedent's death but born after will receive a share if they live for at least 120 hours (5 days) after the decedent's death. North Dakota's intestate succession laws also follow these guidelines:

  • Gifts given in advance. When a person gives a property to a relative while they are still living, the value of that property shall be deducted from the relative’s share if:

    • the decedent stated in a note that they gifted the property to the relative in question or

    • the relative formally acknowledged receiving the gift.

  • Immigration status. Regardless of the legal status of citizenship in the United States, relatives who are entitled to an intestate portion of the deceased person’s estate shall inherit a share.

  • Half-relatives. Stepbrothers and stepsisters are entitled to receive a portion of the decedent’s intestate estate just as they would if their parents were a legitimate married couple.

  • Posthumous relatives. Family members who were conceived prior to the death of the decedent and were born afterward shall receive a share as long as they survive for a minimum of 120 hours after the decedent’s passing.

Does North Dakota Impose Inheritance and Estate Taxes?

North Dakota does not have inheritance or estate taxes. However, if the decedent’s total gross estate is at least $13.61 million, the personal representative is obligated to submit copies of both Form 706, the federal estate tax return form, and Form 54-91, the North Dakota estate tax return form.

In addition to these forms, the following documents also need to be filed:

  • A copy of the deceased’s will, if applicable.

  • A copy of any relevant agricultural real estate appraisals.

  • Form 54.29, or the Affidavit as to Location of Real Estate and Personal Property in North Dakota, if taxes are due in North Dakota.

  • Form 131-3, or the Supplemental Agricultural Property Information Form, for the amount of land covering any ranch or farmland.

Resources Related to Inheritance Law in North Dakota

State Bar Association of North Dakota

The State Bar Association of North Dakota is the oldest state bar association in the U.S. It offers a lawyer referral service to connect clients in need of legal representation with attorneys. Additionally, it provides a Member Assistance Program, which is a private, in-person counseling service for a range of issues, such as family and financial challenges, marital and parenting problems, emotional crises, and job-related concerns, at various locations throughout North Dakota.

Contact Numbers:
State Bar Association of North Dakota - (701) 255-1404 or (800) 472-2685
Lawyer Referral Service - (866) 450-9579
Volunteer Lawyer Program - (866) 450-8586

Mailing Address:
PO Box 2136, Bismarck, ND 58502-2136

North Dakota Court System

The North Dakota Court System provides a list of all attorneys who are licensed to practice law in the state. The federal statute for the Dakota Territory established a three-judge Supreme Court in 1861, which led to the creation of the North Dakota Court System. There are currently three tiers of the North Dakota legal system: the Municipal Courts, the District Court, and the Supreme Court.

Contact Numbers:
Self-Help Center - (701) 328-1852
Supreme Court - (701) 328-2221
Technical issues - (701) 328-4218

Dakota Plains Legal Services

Veterans, senior citizens, and low-income North and South Dakotans can receive free legal assistance from Dakota Plains Legal Services, a nonprofit organization. It helps with a range of civil matters in state and tribal courts, including wills and estates, public benefits, family law, housing, employment, and health.

Eligibility for legal services is based on a person’s place of residence and income level. The federal poverty standards are used to assess income eligibility. Certain individuals, such as those over 60, are qualified for assistance regardless of their income. Use the online application form or get in touch with a DPLS office to get the service.

Legal Services of North Dakota

The nonprofit Legal Services of North Dakota offers free legal aid to people in the state for a range of issues. To be eligible, the applicant needs to fulfill the following conditions:

  • The applicant’s income must be at least 125% of the federal poverty line; however, depending on the circumstances and age of the case, there may be higher or no income limits.

  • The applicant must be a citizen of the U.S. or be able to prove their immigration status if their case is approved.

There are three ways to request legal aid: over the phone, online, or in person.

North Dakota Free Legal Answers

The North Dakota Free Legal Answers is a civil legal service sponsored by the State Bar Association of North Dakota and the American Bar Association's Standing Committee on Pro Bono and Public Service. This initiative aims to give qualifying North Dakota residents who submit their questions online free responses to their particular civil legal inquiries. Family matters, financial rights, civil rights, eviction, work-related issues, juvenile justice, health and disability, income maintenance, and education law are some of the areas covered. The queries are answered by an unnamed or anonymous volunteer attorney.

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