North Dakota Inheritance.

North Dakota Inheritance

North Dakota Inheritance

The First Laws of Inheritance – The Book of Numbers, Chapter 28, Verse 8-11, King James Version

If a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter.

And if he have no daughter, then ye shall give his inheritance unto his brethren.

And if he have no brethren, then ye shall give his inheritance unto his father’s brethren.

And if his father have no brethren, then ye shall give his inheritance unto his kinsman that is next to him of his family, and he shall possess it: . . .

North Dakota Inheritance Laws

Today, a person’s North Dakota inheritance is determined by either the North Dakota laws of intestate succession, or the terms of a decedent’s Will which is probated by a North Dakota court.

North Dakota Inheritance – Intestate

A person who dies without having executed a valid Will is said to have died intestate.

(Not interstate – which is a different concept altogether – and often refers to a federal highway.)

A person who dies having executed a valid Will which is not effective to distribute all of the decedent’s property has an estate which is partially intestate.

North Dakota Inheritance – Testate

In contrast, a person who dies having executed a valid Will – otherwise known as a testamentary instrument – is said to have died testate, and is referred to as a testator.

North Dakota Inheritance – North Dakota Intestate Succession

North Dakota probate statute N.D.C.C. 30.1-04-01 defines the term North Dakota intestate succession, by providing in part as follows:

Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this title [30.1 – the Uniform Probate Code in North Dakota], except as modified by the decedent’s will.

Partial Intestacy – North Dakota Inheritance

Partial intestacy can occur if the decedent had a Will which did not anticipate the occurrence of certain events – such as the death of a named Will beneficiary.

North Dakota Inheritance – Failure of a Specific Devise

In the Estate of Haugen, the North Dakota Supreme Court identified that the failure of a specific devise resulting from the death of a named devisee forced such property into the residue of the estate:

When a [will] devise fails because the devisee predeceases the testator, that devise “becomes a part of the residue.”

See Estate of Haugen, 2011 ND 28, citing N.D.C.C. § 30.1-09-06(1);

Except as provided in section 30.1-09-05, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue.

see also Jordan v. Anderson, 421 N.W.2d 816, 819-20 (N.D. 1988).

Lack of a Residue Clause – North Dakota Inheritance

In the Haugen decision, the lack of a proper residuary clause led to the partial intestacy of the decedent’s estate – even though the decedent died with a Will.

. . . [The decedent’s] will does not have a residuary clause, and as a result, the will does not dispose of his property.

“Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession.”

See Estate of Haugen, 2011 ND 28, citing N.D.C.C. § 30.1-04-01(1)

. . . . [The decedent’s] estate passes according to the laws of intestate succession because his will does not dispose of his estate.

See Estate of Haugen, 2011 ND 28.

North Dakota Inheritance – Mineral Rights

If a decedent dies owning real property interests in North Dakota – including mineral rights – which are not subject to:

the decedent’s property will be subject to laws relating to North Dakota intestate succession.

North Dakota Inheritance – Statutory Probate Rights

The estate of a North Dakota resident may also be subject to homestead rights, exempt property rights, family maintenance allowance rights, and elective share rights – not otherwise addressed herein.

North Dakota Inheritance – Intestate Estate Passes to the Legal Heirs

Any part of a decedent’s North Dakota probate estate which is not effectively disposed of by a Will or other statutory provision passes by North Dakota intestate succession to the decedent’s legal heirs, except to the extent that the decedent may have restricted the identity of the decedent’s legal heirs by the terms of a Will.

North Dakota Inheritance – Determination of a Decedent’s Legal Heirs

If a decedent died:

  • owning property interests in North Dakota – including mineral rights,
  • without a fully effective Will, and
  • without having a North Dakota court determine his or her legal heirs,

legal counsel may be required in order to review the decedent’s marriage history and family tree in order to determine the identity of the decedent’s legal heirs who would be entitled to receive the decedent’s North Dakota intestate estate pursuant to North Dakota intestate succession laws.

Oil company title examiners may provide mineral rights owners with a head start by making the company’s own preliminary determination of the decedent’s heirs – based upon whatever information is available to such title examiners.

North Dakota Inheritance – Definitions

Child

North Dakota probate statute – N.D.C.C. Section 30.1-01-06(6) defines the term child as follows:

Child includes an individual entitled to take as a child under this title by intestate succession from the parent whose relationship is involved, and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.

Parent

North Dakota probate statute – N.D.C.C. Section 30.1-01-06(36) defines the term parent as follows:

Parent

  • includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title, by intestate succession from the child whose relationship is in question

and

  • excludes any person who is only a stepparent, foster parent, or grandparent.

Descendent

North Dakota probate statute – N.D.C.C. Section 30.1-01-06(10) defines the term descendant as follows:

Descendant of an individual means

  • all descendants of all generations,
  • with the relationship of parent and child at each generation being determined by the definition of child and parent contained in this title.

Issue

North Dakota probate statute – N.D.C.C. Section 30.1-01-06(26) currently defines the term issue as follows:

Issue of a person means descendant as defined in subsection 10.

Issue – Kraft v. Ramos (In re Estate of Boehm)

In Kraft v. Ramos (In re Estate of Boehm), 816 N.W.2d 793, 2012 ND 104 (N.D., 2012), the North Dakota Supreme Court reviewed a previous definition of the term issue from a prior version of the statute effective in 1995, as follows:

 ‘Issue’ of a person means all his lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this title.”

N.D.C.C. § 30.1–01–06(22) (Supp.1995).

We apply the version of the North Dakota Century Code in effect in 1995 at the time Emma Boehm executed her will, which was relied on similarly by the parties and trial court.

 The definition of “issue” incorporates the term “child,” and therefore the definition of “child” must be examined as well.

 “ ‘Child’ includes any individual entitled to take as a child under [title 30.1] by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.”

 N.D.C.C. § 30.1–01–06(4) (Supp.1995).

 To fully understand the definition of “child,” we must determine under what conditions a person is

“entitled to take as a child under this title by intestate succession from the parent whose relationship is involved….”

Section 30.1–04–09, N.D.C.C. (Supp.1995), is particularly relevant to this determination, providing:

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

1.       An adopted person is the child of an adopting parent and not of the natural parents, except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and either natural parent.

Heirs

North Dakota probate statute – N.D.C.C. Section 30.1-01-06(22) defines the term heirs as follows:

Heirs . . . means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.

Will

North Dakota probate statute – N.D.C.C. Section 30.1-01-06(60) defines the term Will as follows:

Will includes [a] codicil and any testamentary instrument that

  • merely appoints an executor,
  • revokes or revises another will,
  • nominates a guardian, or
  • expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.

A Decedent’s Will May Modify North Dakota Inheritance Laws

North Dakota probate statute – N.D.C.C. Section 30.1-04-01, provides that a person may by Will expressly exclude or limit the right of either an individual, or a class of beneficiaries, to succeed to such property which would otherwise pass by North Dakota intestate succession.

Modify North Dakota Inheritance – the Estate of Samuelson

In the Estate of Samuelson, the North Dakota Supreme Court declared that:

  • if a testator excludes a named individual from taking any part of the testator’s estate pursuant to the laws of intestate succession,

  • such an exclusion does not extend to the descendants of the excluded person,

by supporting the following of the District Court’s determinations:

 The district court determined

  • paragraph IV of [the decedent’s] will clearly indicated the remainder of his estate was to pass to his mother . . . . [who] predeceased [the decedent],

and

  • [the decedent’s] will did not contain a provision governing distribution in the event of the death of his mother.

The district court held [the decedent’s] will did not effectively distribute the residuary of his estate; therefore, intestate succession governed the balance of his estate.

The district court also held paragraph V [of the Will]

  • did not exclude [the decedent’s heirs] individually, or as a class;
  • it only excluded [the decedent’s half sister].

The district court ordered [that the decedent’s heirs] were the only descendants of the decedent’s parents; therefore, they inherited the intestate estate of [the decedent].

In paragraph IV of his will, [the decedent] gave the residuary of his estate to his mother, . . . . However, [the decedent’s mother] predeceased him. [The decedent] did not include a provision in his will governing the event in which his mother predeceased him.

 See Estate of Samuelson, 2008 ND 190, 757 N.W.2d 44

 North Dakota Inheritance – Anti-lapse Statute

In order to identify those persons entitled to the North Dakota intestate estate, the North Dakota Supreme Court – in the Estate of Samuelson – first had to work through North Dakota’s antilapse statute, which is intended to preserve assets for the descendants of persons who failed to survive the testator:

 North Dakota has an antilapse statute, which states:

 If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator

  • is dead at the time of execution of the will,
  • fails to survive the testator, or
  • is treated as if the devisee predeceased the testator,

the issue of the deceased devisee who survive the testator . . . take in place of the deceased devisee[.]

N.D.C.C. § 30.1-09-05.

This statute pertains to [the decedent’s mother] because she was a lineal descendent of [the decedent’s] grandparents.  

But, according to the statute, only the issue of the deceased devisee may take in place of the deceased devisee, and [the decedent’s mother]’s only issue was [the decedent].

Therefore, the antilapse statute does not apply to the facts of this case, and paragraph IV of [the decedent’s] will did not effectively dispose of the residuary of his estate.

North Dakota Inheritance – Disinheriting Heirs by Changing the Definition

The issue to be determined by the North Dakota Supreme Court in the Estate of Samuelson was articulated as follows:

Because [the decedent’s heirs] stand to take [the decedent’s] intestate estate, the issue of whether [the decedent’s] will excluded [the decedent’s heirs] from inheriting his intestate estate needs to be resolved.  Paragraph V of [the decedent’s] will states:

 “I have intentionally failed to provide for my half sister, . . . .”

This clause is permitted according to North Dakota’s negative will statute, N.D.C.C. § 30.1-04-01.  Section 30.1-04-01(1), N.D.C.C., provides:

 “Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this title, except as modified by the decedent’s will.” (Emphasis added).

This statute does not indicate that when a testator excludes an individual in his will, he or she needs to specify whether that exclusion pertains to only

  • testate distribution, or
  • testate and intestate distribution.

According to the plain language of N.D.C.C. § 30.1-04-01, we hold when a testator expressly excludes an individual in his will,

  • the individual is excluded from taking under both testate and intestate succession,
  • unless the testator expressly specifies a contrary intention.

Thus, paragraph V of [the decedent’s] will effectively excluded [the decedent’s half sister] from taking by both testate and intestate succession.

Section 30.1-04-01(2), N.D.C.C., provides:

“A decedent, by will, may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession.”

The plain language of the statute makes it clear that disinheritance of either an individual or a class must be expressed and cannot be implied.

North Dakota Inheritance – No Intent to Exclude Heirs  

The holding by the North Dakota Supreme Court in the Estate of Samuelson was as follows:

 Because [the decedent] did not expressly exclude [the decedent’s half sister]’s heirs, either individually or by class, this Court cannot infer [the decedent] intended to exclude [the decedent’s half sister]’s heirs.

Additionally, N.D.C.C. § 30.1-04-01(2), states:

 . . . If that individual . . . survives the decedent, the share of the decedent’s intestate estate to which that individual . . . would have succeeded passes as if that individual . . . had disclaimed the intestate share.

This statute makes it clear

  • if a decedent excludes an individual’s right to inherit, and
  • the individual survives the decedent,

the individual’s heirs are not automatically excluded, because the share passes to the excluded individual’s heirs. In addition, the official comment to section 2-101 of the 1990 Uniform Probate Code, which contains language similar to N.D.C.C. § 30.1-04-01(2), provides:

Subsection (b) establishes the consequence of a disinheritance — the share of the decedent’s intestate estate to which the disinherited individual . . . would have succeeded passes as if that individual . . . had disclaimed the intestate share.”

Thus, the residuary of [the decedent’s] estate passes as though [the decedent’s half sister] disclaimed the intestate share.

North Dakota Inheritance – North Dakota’s Disclaimer Statute

 In the Estate of Samuelson, the North Dakota Supreme Court also identified the interplay of North Dakota’s “disclaimer” statute with the laws of North Dakota intestate succession:

Section 30.1-10.1-03(4), N.D.C.C., states a

 “disclaimed interest passes as if the disclaimant had died immediately before the distribution time.”

 If [the decedent] had not excluded [the decedent’s half sister], and [the decedent’s half sister] had disclaimed her interest, [the decedent’s heirs] would have taken the remainder of [the decedent’s] estate.

 N.D.C.C. § 30.1-10.1-03(4).

The district court order, determining the remainder of [the decedent]’s estate is governed by the laws of intestate succession and that [the decedent’s half sister’s heirs] are entitled to the remainder of [the decedent]’s estate, is affirmed.

 See Estate of Samuelson, 2008 ND 190, 757 N.W.2d 44

Related Topics

Topics of Interest – North Dakota Intestate Succession.

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 Transfer on Death Deeds

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.

North Dakota Inheritance Laws

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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

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

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Information provided herein is only for general informational and educational purposes. North Dakota’s version of the Uniform Probate Code involves many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with a North Dakota attorney of your choice.

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