4.04.25 Decedent's Estates

North Dakota - Decedent’s Estates

 ·         Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual?  If so, please identify and define such terms.  Provide statutory citations. 

The Uniform Probate Code, was enacted S.L. 1973, ch. 257, § 1.  Terms may vary, but tend to match the uniform probate law in many states.

 
  • Is there a statutory time limit for (a) probating a decedent’s will, or (b) opening administration of an Intestate’s estate?  If so, specify for both situations.  Provide statutory citations.
 

NDCC §30.1-12.08  Probate, testacy and appointment proceedings ‑‑ Ultimate time limit.

 No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than three years after the decedent's death, except 1) a previous proceeding was dismissed; 2) an absentee for whom a conservator was appointed; 3) some situations where a proceeding to contest the will is instituted; 4) certain actions may be brought to confirm title in estate assets or establish an instrument to direct or control the ownership of property. The three year limitation does not apply to proceedings to construe probated wills or determine heirs of an intestate. 
  • Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property:  Community, separate, tenancy by the entirety, dower, curtesy, etc.?  If so, summarize.  Provide statutory citations.
 NDCC § 30.1-4-13 (2-112) Dower and curtesy abolished.  No other provision. 
  • Does your state recognize joint tenancies?  If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant.  Provide statutory citations.
 NDCC § 47-19-06  In all cases of joint tenancy in lands, a copy of the death certificate of the joint tenant, duly certified by any officer who is required by the laws of the state or country in which the record is made, to keep a record of the death of persons occurring within the jurisdiction of the officer, may be recorded in the office of the register of deeds of the county in which the lands are situated. The legal description of any property to which the recording of the death certificate relates must be attached to the death certificate. The certified copy of death certificate, or the record thereof in the office, or a duly certified copy of the last mentioned record, is prima facie evidence of the death of the person and the termination of the joint tenancy and all the estate, title, interest, and lien as was or is limited upon the life of that person.  
  • Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions?  Provide statutory citations.
 

NDCC § 30.1-05-01 (2-201), et seq. provides that the surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this chapter, to take an elective share of one-half of the augmented estate.  NDCC § 30.1-6-01 (2-301) and § 30.1-6-02 (2-302) provide for omitted children and spouses.  NDCC § 47-18-01 details the homestead allowance.  Exemptions and family allowance are provided for in NDCC § 30.1-7-01 (2-403) and § 30.1-7-02 (2-404), respectively.

 
  • Summarize the steps required for a testate administration.  Provide statutory citations.
 

To prove transfer of property or nominate an executor, a will shall be declared to be valid by an order of informal probate, or and adjudication of probate by the court.  NDCC § 30.1-12-02 (3-102)

 Appointment of a personal representative by order of the court or clerk and an issuance of letters which commences administration of the estate.  NDCC § 30.1-12-02 (3-103) 

Determination of creditors’ claims.  NDCC § 30.1-19-01 et seq.  Distribution NDCC § 30.1-1-20-01 et seq.  Closing of estate NDCC § 30.1-21-01 et seq.

 
  • Summarize the steps required for an intestate administration.  Provide statutory citations.
 

Same as testate administration.  Determination of creditors claims.  Order determining heirship and distribution, closing of estate.

 
  • Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship)  If so, describe the procedure and furnish a sample of any forms.
 

No.

 

·         Are there any short or abbreviated probate procedures provided for by statute?  If so, summarize.  Provide statutory citations.

 

No.

 
  • Are there any other probate or alternative probate procedures available in your state that haven’t been described?  If so, summarize.  Provide statutory citations.
 

No.

 
  • Does your state statutes provide for an “inheritance” tax?  If so, is it based on (a) an heir’s share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis?  Provide statutory citations.
 

North Dakota provides for an estate tax in NDCC § 57-37.1-01, et seq.  The amount of tax imposed upon the transfer of the North Dakota taxable estate must be equal to the maximum tax credit allowable for state death taxes against the federal estate tax imposed with respect to a decedent's estate which has a taxable situs in this state.  NDCC § 57-37.1-04

 
  • Does your statutes provide for an inheritance tax lien?  If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien.  Is there a statute of limitations for the inheritance tax lien?  If so, specify.  Provide statutory citations.
 

Whenever any estate is liable to pay a tax, the amount of the tax, including any interest or addition to the tax, is a lien in favor of the state of North Dakota on the real and personal property of the estate from the time the tax commissioner files a notice of estate tax lien with the register of deeds of a county in which the real or personal property is situated.  NDCC § 57-37.1-09.1

 

No general statute of limitation may be considered as a bar to the collection of the respective share of the estate tax from each beneficiary.  NDCC § 57-37.1-09

 
  • Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration.  Provide statutory citations.
 

NDCC § 30.1-18-11 (3-711) and § 30.1-18-15 (3-715) enumerate the power of personal representative.  It includes power to sell and convey real property.

  • Can a personal representative for a testate administration sell real property of the estate without obtaining a court order?  Yes.  If so, please identify any requirements?
 Same as bulleted item above. NDCC § 30.1-18-04 (3-704)  A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and, except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order, or direction of the court, but may invoke the jurisdiction of the court, in proceedings authorized by this title, to resolve questions concerning the estate or its administration. 
  • Summarize the steps of such procedure.  Provide statutory citations.
 When the estate has been converted to a formal or supervised proceeding, then they must simply petition for an order of sale.

We will require a court order for any transaction where the personal representative has a conflict of interest.
 NDCC § 30.1-18-13 (3-713)  Any sale or encumbrance to the personal representative, the personal representative's spouse, agent, or attorney, or any corporation, limited liability company, or trust in which the personal representative has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless:

1. The will or a contract entered into by the decedent expressly authorized the transaction; or
2. The transaction is approved by the court after notice to interested persons.
 
  • Does your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)?  If so, summarize the provisions and procedures.  Provide statutory citations.
 North Dakota provides for acts of foreign personal representatives appointed in wills probated in foreign jurisdictions.  A personal representative must file certified copies of the appointment and of any official bond with the court, in this state in a county in which property belonging to the decedent is located.  NDCC § 30.1-24-05 (4-204) A domiciliary foreign personal representative who has complied with section 30.1-24-05 (4-204) 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 nonresid