North Dakota Intestate Succession

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

the provisions of a validly executed Will,
joint tenancy survivorship rights, or
a transfer-on-death provision,

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

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’s laws of 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 Intestate Succession – Determination of 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 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 intestate estate pursuant to North Dakota’s laws of intestate succession.

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.

Share of a Surviving Spouse

The North Dakota inheritance share – the North Dakota intestate estate share – passing to a Surviving Spouse, will vary depending on the date of the decedent’s death, and the identity of the decedent’s relatives, and perhaps others who survived the decedent’s death.

North Dakota Intestate Succession – Shares of Persons Other Than a Surviving Spouse

The North Dakota inheritance share – the North Dakota intestate estate share – passing to persons other than a surviving spouse:

will be determined by reference to the amount passing to the surviving spouse, if any, and

will depend upon the identity of the relatives of the decedent, and sometimes the decedent’s surviving spouse(s), who survive the decedent’s death.

Current Provisions for the Surviving Spouse – After August 1, 2009

After amendments to North Dakota probate statute – N.D.C.C. Section 30.1-04-02, effective on August 1, 2009, a surviving spouse is now entitled to the following amounts and percentages of the intestate estate:

(i) North Dakota Intestate Succession – No Surviving Descendant and No Surviving Parent

Pursuant to N.D.C.C. Section 30.1-04-02(1), a surviving spouse is entitled to the entire intestate estate if the decedent is survived by a spouse, and there is no surviving descendent, and no surviving parent.

The apparent rationale for the above provision is that if a decedent is not survived by any other close relatives, the surviving spouse should be entitled to the entire intestate estate.

(ii) North Dakota Intestate Succession – All Joint Descendents

Pursuant to N.D.C.C. Section 30.1-04-02(1), a surviving spouse is also entitled to the entire intestate estate if all of the decedent’s surviving descendents were also descended from the surviving spouse, and the surviving spouse has no other descendent who survives the decedent.

The apparent rationale for the surviving spouse being entitled to the entire intestate estate in such a situation is that if a decedent is survived by a spouse and descendents – all of whom are descended from both the decedent and the surviving spouse, and the surviving spouse has no other descendents – the surviving spouse can be expected to provide for their joint descendents from the entire intestate estate which is left to the surviving spouse.

(iii) North Dakota Intestate Succession – No Surviving Descendent But a Parent Survives

Pursuant to N.D.C.C. Section 30.1-04-02(2), if the decedent is survived by a spouse and one or more parents, but no surviving descendent, the share of the surviving spouse would be the first $300,000.00 of the intestate estate, plus three fourths of the balance of the intestate estate.

The apparent rationale for such a division of the intestate estate is that if a decedent is survived by a spouse, and one or more parents, but no descendents, the decedent’s surviving parent(s) should be entitled to a share of the intestate estate if it is sufficiently large – presumably for their general support, and as a funding source for nursing home expenses.

(iv) North Dakota Intestate Succession – Surviving Spouse has Exclusive Descendents

Pursuant to N.D.C.C. Section 30.1-04-02(3), if the decedent has descendents who were all descended from the surviving spouse, but the surviving spouse has other descendents who were not descended from the decedent, the share of the surviving spouse would be the first $225,000 of the intestate estate, plus one-half of the balance of the intestate estate,

The apparent rationale for such a lesser allocation of the intestate estate is that the surviving spouse can be expected to spend at least a part of the intestate estate on the support of one or more exclusive descendents of the surviving spouse – at the expense of the joint descendants.

For that reason, the North Dakota probate laws of intestate succession reserve a share of the intestate estate for the surviving joint descendents, at the expense of the surviving spouse and his or her exclusive descendants.

(v) North Dakota Intestate Succession – Decedent Spouse has Exclusive Descendents

Pursuant to N.D.C.C. Section 30.1-04-02(4), if the decedent has descendents who were not descended from the surviving spouse, the share of the surviving spouse would be the first $150,000 of the intestate estate, plus one-half of the balance of the intestate estate.

The apparent rationale for such a division of the intestate estate is that the surviving spouse cannot be expected to provide from the intestate estate for the decedent’s exclusive descendents if such descendents were not also descended from the surviving spouse.

North Dakota Intestate Succession – Current Provisions for the Share of Heirs Other Than a Surviving Spouse – After August 1, 2009

Since August 1, 2009, under current North Dakota law the share of the intestate estate to be distributed to persons other than the surviving spouse will vary depending on the date of the decedent’s death, the identity of persons related to the decedent who survive the decedent’s death, and the identity of persons, if any, who are descended from the decedent, and from the surviving spouse.

(i) Surviving Descendent(s)

Pursuant to N.D.C.C. Section 30.1-04-03(1), if the decedent has one or more surviving descendents, any part of the intestate estate not passing to a surviving spouse will pass to such surviving descendents who would be entitled to such interest by representation, which would allocate the share of any deceased descendant to his or her own descendants.

(ii) No Surviving Descendent But Surviving Parent(s)

Pursuant to N.D.C.C. Section 30.1-04-03(2), if the decedent has no surviving descendents, any part of the intestate estate not passing to a surviving spouse will pass to the decedent’s surviving parents if both survive, or to the surviving parent if only one survives.

However, N.D.C.C. Section 30.1-04-09 imposes the following conditions on a parent inheriting from or through a child of the parent.

A parent is barred from inheriting from or through a child of the parent if the parent’s parental rights were terminated and the parent-child relationship was not judicially reestablished, or the child died before reaching eighteen years of age, and there is clear and convincing evidence that immediately before the child’s death the parental rights of the child’s parent could have been terminated under other law of this state on the basis of nonsupport, abandonment, abuse, or neglect, or other actions or inactions of the parent toward the child.
For purposes of intestate succession from or through the deceased child, a parent who is barred from inheriting under this section is treated as if the parent predeceased the child.

(iii) No Surviving Descendent or Parent(s)

Pursuant to N.D.C.C. Section 30.1-04-03(3), if the decedent has no surviving descendent or parent, any part of the intestate estate not passing to a surviving spouse will pass to the surviving descendents of the decedent’s parents:

who would be entitled to such interest by representation,
which would allocate the share of any deceased descendant to his or her own descendants.

(iv) No Surviving Descendent, Parent, or Descendent of Parents

Pursuant to N.D.C.C. Section 30.1-04-03(4), if the decedent has no surviving descendent, parent, or descendent of the decedent’s parents, any part of the intestate estate not passing to a surviving spouse will pass

one-half to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent – if only one survives, or to the descendants of the decedent’s paternal grandparents, or either of them if both are deceased, with such descendants taking by representation; and
one-half to the decedent’s maternal grandparents equally if both survive, or to the surviving maternal grandparent if only one survives, or to the descendants of the decedent’s maternal grandparents, or either of them if both are deceased, with such descendants taking by representation.

(v) No Surviving Descendent, Parent, or Descendent of Parents, but Survival by Grandparents or Descendants on One Side Only

Pursuant to N.D.C.C. Section 30.1-04-03(5), if the decedent has no surviving descendent, parent, or descendent of the decedent’s parents, but is survived by one or more grandparents, or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, any part of the intestate estate not passing to a surviving spouse will pass to the decedent’s relatives on the side with one or more surviving members in the manner as described in N.D.C.C. Section 30.1-04-03(4).

Confusing?

Yes – even for lawyers.

(vi) No Surviving Descendent, Parent, or Descendent of Parents, but Survival by one or more Descendants of (a) Deceased Spouse(s)

Pursuant to N.D.C.C. Section 30.1-04-03(6), if the decedent has no surviving descendent, parent, descendent of a parent, or descendant of a grandparent, but:

one predeceased spouse had one or more descendants who survived the decedent, any part of the intestate estate not passing to the surviving spouse passes to such descendants by representation, or
more than one predeceased spouse had one or more descendants who survived the decedent, any part of the intestate estate not passing to the surviving spouse is divided into as many equal shares as there are deceased spouses, with each share passing to those descendants by representation,

Conclusion – North Dakota Intestate Succession

Determining the identity of a decedent’s legal heirs with respect to North Dakota property interests – North Dakota inheritance rights – can be challenging – particularly if several generations have passed without a determination of such heirs by any court.

For assistance in claiming your rights to an intestate share of North Dakota property – including mineral rights – contact Minnesota and North Dakota probate attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Whether you reside in North Dakota, California, Minnesota, Florida, or any other state, if you had a relative who died owning mineral rights in North Dakota which have not yet been properly settled, contact Minnesota and North Dakota probate 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.

Even though Minnesota and North Dakota probate attorney Gary C. Dahle does not maintain an office in North Dakota, he is able to assist persons throughout the United States with their North Dakota probate, real estate, and mineral rights issues which do not require a personal court appearance in North Dakota – and many such issues do not.

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 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 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.

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 Canada, Norway, and Alabama, California, Colorado, Florida, Illinois, Indiana, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, New York, North Dakota, Ohio, Oklahoma, Oregon, Texas, Virginia, and Washington 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

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.

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