North Dakota Formal Probate- Gary C. Dahle, Attorney at Law

North Dakota Formal Probate

North Dakota Formal Probate Commencement

There are two types of probate commencement procedures in North Dakota:

North Dakota Formal Probate – a probate commencement procedure which requires a court hearing before a judge – after notice of the hearing has been provided to all interested parties, and published in a legal newspaper in the North Dakota County in which the hearing is to be held; and
North Dakota Informal Probate – a quasi-judicial probate commencement procedure which only requires the approval and signature of a judicial officer – without any requirement for a hearing, or advance written notice to any interested party.

While the North Dakota Informal Probate procedure is more commonly used, the North Dakota Formal Probate procedure will be required in certain situations – including when neither the original Will, nor any certified copy of the Will admitted to probate in another state, can be located and filed in the North Dakota probate court.

Court Filing Fee

The court filing fee for the commencement of either a North Dakota Informal Probate proceeding, or a North Dakota Formal Probate proceeding, is currently the same.

Notice Requirements

Regardless of whether the North Dakota Informal Probate procedure, or the North Dakota Formal Probate procedure, is used:

the applicant with respect to a North Dakota Informal Probate procedure, and
the petitioner with respect to a North Dakota Formal Probate procedure,

must give notice of the probate proceeding to certain interested persons.

However, the timing of the notice differs depending on whether it is a North Dakota Informal Probate procedure, or a North Dakota Formal Probate procedure.

Notice must be provided prior to the appointment by the Court of a Personal Representative in a North Dakota Formal Probate procedure.

However, notice is provided after the appointment by the Court of a Personal Representative in a North Dakota Informal Probate procedure.

Formal Probate Proceedings

A North Dakota Formal Probate proceeding is commenced by a petitioner filing a Petition with the probate court requesting that a judge:

make a determination as to the heirs of a decedent, and the validity of a Will, if any, and
appoint one or more personal representative(s) of the decedent’s estate.

Hearing Requirements

A North Dakota Formal Probate proceeding will require a hearing before a judge.

Methods of Notice

There are two methods of notice required in a North Dakota Formal Probate procedure:

Published notice – by publication of notice of the commencement of the probate proceeding in a legal newspaper in the county in which the North Dakota Formal Probate proceeding was commenced; and
Mailed notice – by mailing a copy of the notice of the commencement of the North Dakota Formal Probate proceeding by first class US mail to all interested persons.

The published notice must be completed, and all personal notices must be provided, prior to the hearing, and within certain statutory time frames.

Proof of Publication

The publisher of the legal notice with respect to a North Dakota Formal Probate proceeding will provide an Affidavit of Publication to the petitioner – for filing with the probate court – when publication of the notice has been completed.

Proof of Mailing

The petitioner with respect to a North Dakota Formal Probate proceeding must file with the Court an Affidavit of Mailing attesting to the completion of the mailing of all required personal notices.

Persons Entitled to Notice

N.D.C.C. Section 30.1.15-03 identifies those persons who are entitled to a timely notice in a North Dakota Formal Probate proceeding to include:

The surviving spouse, children, and other heirs of the decedent;

N.D.C.C. 30.1-01-06 (23) defines the term “heirs”, in the following manner:

“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.

2.The devisees and executors named in any will

that is being, or has been, probated, or offered for informal or formal probate in the county, or
that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere; and

3. Any personal representative of the decedent whose appointment has not been terminated.

North Dakota Formal Probate – Demands for Notice

N.D.C.C. Section 30.1-13-04 imposes additional notice requirements with respect to persons who have filed a Demand for Notice with the probate court.

However, such Demands for Notice are not usually filed with respect to North Dakota mineral rights probate proceedings – particularly those involving decedents who died many years ago.

Failure to Provide Proof of Notice

If all of the legally required notices are not provided in a timely manner, a judge in a North Dakota Formal Probate proceeding will suspend the hearing, and reschedule it to another day, in order to allow the petitioner sufficient time in which to provide all of the legally required notices.

Appearance Requirements

A North Dakota Formal Probate proceeding will allow, but may not require, an appearance by the petitioner and his or her legal counsel in the courtroom at the hearing.

Usually, no appearance will be required by either the petitioner, or by his or her legal counsel, if no objections are filed to the petition.

North Dakota Formal Probate – Devise

N.D.C.C. 30.1-01-06(11) defines the term devise, by providing as follows:

“Devise“, when used as a noun, means a testamentary disposition of real or personal property, and when used as a verb, means to dispose of real or personal property by Will.

North Dakota Formal Probate – Devisees

N.D.C.C. 30.1-01-06(12) defines the term devisee, by providing in part as follows:

“Devisee“ means a person designated in a will to receive a devise.

In the case of a devise

to an existing trust or trustee, or

to a trustee or trust described by will,

the trust or trustee is the devisee and the beneficiaries are not devisees.

Therefore, since a devisee is a person designated in a Will to receive a devise,

when there is a devise to a trust or trustee,
such trust or trustee is the devisee, and not the beneficiaries of the trust.

Priority for Appointment

N.D.C.C. 30.1-13-03 identifies that the priority of persons entitled to appointment as personal representative in a North Dakota Formal Probate proceeding shall be in the following order:

A personal representative appointed by a court of the decedent’s domicile (the “domiciliary personal representative”), has priority over all other persons except in cases in which the decedent’s Will nominates:

one person to be the personal representative in the state of domicile, and
another person to be the personal representative in North Dakota – which almost never happens.

If the domiciliary personal representative nominates another person to be the North Dakota personal representative, such person shall have the same priority for appointment as the domiciliary personal representative.
The person with priority for appointment who is nominated as personal representative in a probated Will, including any person who is nominated by a power of nomination conferred in a Will.
The decedent’s surviving spouse who is also identified as a devisee in the decedent’s Will.
Other persons who are identified as devisees in the decedent’s Will.
The decedent’s surviving spouse who is not also identified as a devisee in the decedent’s Will.
The decedent’s other heirs.
A trust company.
Forty-five days after the death of the decedent, any creditor.

Waivers of Appointment

N.D.C.C. 30.1-13-03 identifies that if a person seeking appointment in a North Dakota Formal Probate proceeding does not have the highest priority for such appointment, that person may file with the court certain Waivers of Priority for Appointment which have been obtained from other persons having a higher or equal right to the appointment.

Nevertheless, the judge may appoint any person as personal representative in a North Dakota Formal Probate proceeding when the appointment of such person is deemed to be in the best interests of the estate.

Forwarding of the North Dakota Probate Petition to the Department of Human Services

N.D.C.C. 50-06.3-07 identifies that every person exercising the powers of a North Dakota Personal Representative must provide notice of the appointment to the North Dakota Department of Human Services – in order that the agency can file a timely claim for reimbursement of any nursing home medical assistance benefits provided to the decedent.

Therefore, it would be advisable for the Personal Representative in a North Dakota Formal Probate proceeding who has provided such notice to file with the North Dakota Probate Court an Affidavit of Forwarding of Petition to the North Dakota Department of Human Services in order to evidence the satisfaction of the Personal Representative’s duty to provide such notice.

Personal Representative’s Deed of Distribution

North Dakota real property is distributed to the heirs or devisees in a North Dakota Formal Probate proceeding pursuant to the execution and recording of a Personal Representative’s Deed of Distribution – together with a certified copy of the Personal Representative’s Letters Testamentary or Letters of Administration – which have been certified by the Court on or after the date of the Personal Representative’s Deed of Distribution.

North Dakota Formal Probate – Closing the Estate

Pursuant to N.D.C.C. 30.1-23-03, any time after all of the claims have been paid and the assets of the estate distributed, the estate in a North Dakota Formal Probate proceeding may be closed – except in a supervised administration – by filing with the probate court a Sworn Statement of Personal Representative Closing the Estate.

The estate in a North Dakota Formal Probate proceeding may also be closed by the order of the court pursuant to N.D.C.C. 30.1-21-01.

North Dakota Formal Probate – Conclusion

If you would like assistance with respect to any North Dakota Formal Probate proceeding, contact North Dakota attorney Gary C. Dahle, at 763-780-8390, or 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

Attorneys not licensed in North Dakota are invited to refer possible North Dakota probate issues to Minnesota and North Dakota attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Topics of Interest – North Dakota Intestate Succession.

Topics of Interest – North Dakota Inheritance Laws

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 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.

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

http://www.legis.nd.gov/general-information/north-dakota-century-code

Legal Disclaimer

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.

Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of North Dakota, and in the State of Minnesota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of North Dakota and Minnesota should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

Accessing the web sites of Gary C. Dahle, Attorney at Law – http://www.dahlelaw.com, https://www.NorthDakotaTransferonDeathDeeds.com, or https://www.dahlelawnorthdakota.com – may be held to be requests for information.

However, the mere act of either providing information to Gary C. Dahle, Attorney at Law, or taking note of information provided on https://www.dahlelaw.com, https://www.NorthDakotaTransferonDeathDeeds.com, or https://www.dahlelawnorthdakota.com – does not constitute legal advice, or establish an attorney/client relationship.

Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation. If you are not a current client of Gary C. Dahle, Attorney at Law, please do not use the e-mail links or forms to communicate confidential information which you wish to be protected by the attorney-client privilege.

Please use caution in communicating over the Internet. The Internet is not a secure environment and confidential information sent by e-mail may be at risk. Gary C. Dahle, Attorney at Law, provides the http://www.dahlelaw.com, https://www.NorthDakotaTransferonDeathDeeds.com, and https://www.dahlelawnorthdakota.com web sites and their content on an “as is” basis, and makes no representations or warranties concerning site content or function, including but not limited to any warranty of accuracy, or completeness.