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North Dakota Probate

When a person dies, his or her estate may need to go through probate. Generally speaking, probate is the process in which an individual's estate is concluded upon death, including the collection of assets, payment of debts, and the distribution of the balance of the decedent's assets to the beneficiaries. A probate proceeding effectively passes title of a decedent’s assets to those entitled to them.

Also commonly referred to as “estate administration,” probate is the method by which the rights of all interested parties in a decedent’s estate are determined. “Interested parties” includes heirs (those entitled to inherit by state law in situations where no Will exists or the Will does not cover all assets governed by the Probate Court), Will beneficiaries, creditors, and taxing authorities.

The complexity of the probate process is largely affected by whether the decedent had the proper estate planning documents in place. For example, if the decedent leaves a valid will directing how his or her property should be distributed after death, appointing a personal representative, trustee, or guardian of any minor children, the extent of the probate court’s involvement and supervision can be drastically reduced.

Probate procedures are governed by state law and the Uniform Probate Code. The Uniform Probate Code, which simplifies the probate process, has been adopted in its entirety by 16 states (including North Dakota).

Without the help of a legal professional, dealing with the death of a loved one and the legal obstacles to follow can be extremely stressful, if not overwhelming. Gjesdahl Law has attorneys qualified to handle the probate process and can help guide your family through this difficult time.

Common Questions About Probate

How long does Probate take?

Probate in North Dakota or Minnesota will likely take at least 6 months after the initial court date to open the estate. A more realistic minimum time would be 9 to 12 months. Probate can take a great deal longer depending upon issues that arise including claims, disputes between beneficiaries, and the need for an ancillary estate. If an estate tax return is required to be filed, then the estate will likely remain open for at least 18 months.

Are there ways to avoid Probate?

There are several ways to avoid the probate process. One method includes creating a joint ownership with right of survivorship in property such as real estate, automobiles and other titled property

Another method would be to make beneficiary designations on accounts this could include payable-on-death bank accounts or transfer-on-death securities. Additionally, probate can be avoided by placing property in a revocable living trust.

Your attorney can help you manage your property to avoid probate and to transfer property smoothly to your beneficiaries after your death.

What are the advantages of avoiding Probate?

Avoiding probate can result in a more efficient and cheaper solution for distributing your assets. The probate process can be slow, and can tie up property anywhere from several months to several years. In addition, it can be costly since attorney fees, executor fees, and court fees are paid out of the estate.

When considering avoiding the probate process, it is important to consult your attorney to determine which option is best for your situation and family.

What does the Personal Representative do?

The Personal Representative (also referred to as the “Executor”) is the individual who has been specifically named in the Will of the deceased person to serve as the administrator of the estate. The Personal Representative must collect all of the estate assets, pay the final debts of the deceased individual, and make distributions of the estate assets pursuant to the terms of the will. In short, the Personal Representative must faithfully follow the provisions of the will as laid out by the deceased person.

In addition, the Personal Representative typically hires an attorney to assist in the administration of the estate due to the complexities involved with the probate process. The attorney can provide the necessary instructions to carefully carry out the terms of the will and the provisions of the Probate Code. The attorney can also defend the Personal Representative in probate court with regard to any attacks against the Personal Representative's actions in handling the administration of the estate.

Additional Probate Questions & Answers

 

Generally speaking, “probate” is the process in which an individual's estate is concluded upon death, including the collection of assets, payment of debts, and the distribution of the balance of the decedent's assets to the beneficiaries. A probate proceeding effectively passes title of a decedent’s assets to those entitled to them. Also commonly referred to as “estate administration”, probate is the method by which the rights of all interested parties in a decedent’s estate are determined. “Interested parties” includes heirs (those entitled to inherit by state law in situations where no Will exists or the Will does not cover all assets governed by the Probate Court), Will beneficiaries, creditors, and taxing authorities.

The purpose of probate is to determine who is rightfully entitled to the property of the deceased, including creditors.  The probate process is also used to appoint a Personal Representative to administer the estate. In some situations, the probate process is used to determine the validity of a Will.

No. A probate proceeding may involve either formal or informal procedures. Traditionally, probate proceedings were governed by formal procedures that required the probate court to hold hearings and issue orders involving routine matters. Consequently, the legal costs of probating an estate could be substantial. States that have adopted the Uniform Probate Code (which include both North Dakota and Minnesota) on probate procedures allow informal probate proceedings that remove the probate court from most stages of the process, with the result that informal probate is cheaper and quicker than formal probate. Most small estates benefit from an informal probate proceeding.

The probate process begins when the personal representative files with the clerk of the probate court a copy of the death certificate along with the Will and a petition to admit the Will to probate and to grant letters testamentary, which authorize him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who has a pecuniary interest in the estate. The personal representative must elect whether to proceed with formal or informal probate at the time of filing. However, a probate proceeding may be switched from informal to formal during the course of administration, should the need arise.

In a formal probate proceeding, a hearing must be held to establish the death of the testator, the residency of the decedent, the genuineness of the will, its conformance with statutory requirements for its execution, and the competency of the testator at the time the will was made. These requirements are usually fulfilled by the attesting witnesses who were present at the time the will was made and who certify that it was properly executed. The number of attesting witnesses is prescribed by law. If fewer than the required number witness a will, it may be declared void, and the testator's property will pass according to the laws of descent and distribution (also known as “intestacy”).

When some or all of the witnesses to a will are unavailable, special steps are taken. If the required witnesses have died before the testator, the person offering the will must offer proof of death, in addition to evidence of the genuineness of the signatures and any other proof of execution available. The UPC simplifies witness issues by permitting the admission of "self-authenticating" wills. These wills contain a statement signed by the witnesses that attests to the competency of the testator and other statutory requirements. Self-authentication relieves the witnesses of the burden of appearing in court and the personal representative of costly procedures if the witnesses are unavailable.

If no one objects to the will at the hearing, it will be admitted to probate.

Informal probate proceedings generally do not require a hearing. The personal representative files the death certificate and will, along with a petition to admit the will under informal probate. The clerk of probate court reviews the submissions and recommends to the court that the will be probated. Once the court issues the order for informal probate, the personal representative files a series of forms that demonstrate that notice has been given to all interested parties about the probate, the decedent's creditors have been paid, and the estate's assets have been collected, appraised, and distributed to the designated heirs.

No, but most people choose to hire an attorney because the process can be very difficult for someone not legally trained and without the necessary legal knowledge.

Probate will likely take at least 6 months after the initial court date to open the estate. A more realistic minimum time would be 9 to 12 months. Probate can take a great deal longer depending upon issues that arise including claims, disputes between beneficiaries, and the need for an ancillary estate. If an estate tax return is required to be filed, then the estate will likely remain open for at least 18 months.

The expenses involved in Probate generally include legal fees and court costs. Legal fees are generally based on the time involved. The more complex the estate the greater the legal fees. Costs include filing fees, publication fees, and surety bonds.

 

Yes, every personal representative and administrator is entitled to receive a reasonable fee for his or her services.

No, you are not required to accept the role of Personal Representative.

Ancillary probate is probate in a state other than the decedent's domiciliary estate. The majority of the decedent's estate is probated in the state of his primary residence, however if the decedent owned real property in another state, it will be necessary to open an ancillary probate estate in the other state.

"Letters Testamentary" are documents issued and certified by the probate court to the Personal Representative of an estate which are the proof of the Personal Representative's authority to act on behalf of the estate.

The Personal Representative (also referred to as the “Executor”) is the individual who has been specifically named in the Will of the deceased person to serve as the administrator of the estate. The Personal Representative must collect all of the estate assets, pay the final debts of the deceased individual, and make distributions of the estate assets pursuant to the terms of the will. In short, the Personal Representative must faithfully follow the provisions of the will as laid out by the deceased person.

In addition, the Personal Representative typically hires an attorney to assist in the administration of the estate due to the complexities involved with the probate process. The attorney can provide the necessary instructions to carefully carry out the terms of the will and the provisions of the Probate Code. The attorney can also defend the Personal Representative in probate court with regard to any attacks against the Personal Representative's actions in handling the administration of the estate.

If a person dies without a Will, and an “intestate” probate action is necessary. In an intestate probate action, an interested party can petition the court to serve as the personal representative for the estate. They may need to obtain a surety bond to serve as the estate representative, and notice will need to be sent to the relevant heirs regarding the intestate estate.

A will contest is a legal action that challenges the validity of a will and/or the terms of the will. Will contests typically involve allegations that a will was inadequately executed, invalidated by a later will, or was the result of forgery or undue influence.

There are several ways to avoid the probate process. These methods include creating a joint ownership with right of survivorship in property such as real estate, automobiles and other titled property; making beneficiary designations on accounts such as payable-on-death bank accounts and transfer-on-death securities; and placing property in a revocable living trust. Your attorney can help you manage your property to avoid probate and to transfer property smoothly to your beneficiaries after your death.

The probate process can be slow, and can tie up property anywhere from several months to several years. In addition, it can be costly since attorney fees, executor fees, and court fees are paid out of the estate.

Yes. Most states, including both North Dakota and Minnesota have simplified procedures which can be used to administer relatively small estates. This procedure is generally available in North Dakota when the augmented estate is less $50,000, and in Minnesota when the augmented estate is less than $75,000.