Probate Court in North Dakota: What Families Usually Face

When someone dies, their affairs do not stop. Bills and taxes still need to be paid, creditors need to be told, and property has to go to the right people. For many families, probate is the process that makes this happen in an orderly way.

North Dakota follows the Uniform Probate Code, which gives families more than one path. This guide explains those paths in general terms, based on the North Dakota Court System's self-help pages, and when a lawyer can help.

What probate is

The North Dakota Court System describes probate as the court-supervised process of dealing with a deceased person's estate. That includes paying taxes and bills, notifying creditors, and inventorying and distributing property under the will, or under North Dakota law if there is no will.

The court's page also points out an important fact: probate is the only way to have a personal representative appointed. The personal representative, sometimes called the executor, is the person with legal authority to act for the estate. Banks, title offices, and others often want to see that appointment before they deal with you.

Probate is handled by the district court

In North Dakota, probate cases are handled by the state district court. If you have a question about a case that has already been filed, the court's pages direct you to the clerk of court for the county.

Informal probate

Because North Dakota has adopted the Uniform Probate Code, a person can informally probate a will and have a personal representative appointed without a court appearance or hearing, as long as the proper forms are filed and the correct procedures are followed. The informal process can also be used when the person died without a will. In that case, North Dakota law decides who the heirs are.

According to the court, informal probate may generally be used when:

• Less than three years have passed since the date of death
• The validity of the will, if there is one, is not disputed
• Everyone with equal or higher priority to serve as personal representative agrees on who should be appointed

The North Dakota State Court Administrator has put together a guidebook, "Informal Administration of an Estate," with forms. The court notes that forms are not available for every situation. If you need a document that is not in the guidebook, you either draft it yourself or hire a lawyer to do it.

Formal probate

The court's formal probate page explains that formal probate involves more court supervision, and hearings are a required part of the process. Formal probate is required when:

• The validity of a will needs to be decided
• Someone objects to using the informal process
• More than three years have passed since the date of death

Formal cases often take longer and involve more steps, such as giving notice, attending hearings, and responding to objections. Many families hire a lawyer for formal probate.

Small estates: the affidavit option

For some small estates, a court case may not be needed at all. The North Dakota Court System describes an Affidavit for Collection of Personal Property of the Decedent. The person entitled to the property can present it to whoever holds the property, such as a bank, without filing anything with a court.

According to the court, the affidavit may be used when at least 30 days have passed since the death, no real estate is part of the probate estate, no probate case has been started or completed in any state or tribal court, the person claiming is entitled to the property, and the estate is under the value limit stated on the court's page. Check that page for the current limit.

The court also notes that you may want to contact the holder of the property first to find out whether it will accept the affidavit.

Common challenges families face

• Finding documents. Look for a will, deeds, account statements, insurance policies, and recent tax returns.
• Land and mineral interests. Real estate rules out the small estate affidavit, and mineral interests may need special attention.
• Disagreements. If family members disagree about who should serve, informal probate may not be available.
• Time passing. After three years, the court says formal probate is required, so waiting can make the process harder.
• Property in other states. Property elsewhere may need a separate process in that state.

When to talk with a probate lawyer

Simple estates are sometimes handled with the court's guidebook and forms. A lawyer is often helpful when there is a dispute, a will contest, real estate or mineral interests, significant debts, or uncertainty about who the heirs are. A lawyer can also explain the personal representative's duties before you accept the role.

You can browse lawyers in North Dakota and read about the estate planning and probate practice area. The North Dakota Court System's finding a lawyer page lists ways to locate a lawyer and mentions Legal Services of North Dakota. Check that any lawyer you hire is licensed in North Dakota.

Questions to ask at the first meeting

• Can this estate use informal probate or the small estate affidavit?
• What does the personal representative need to do, and by when?
• How should we handle land or mineral interests?
• What if a family member objects?
• How do you charge for probate work, and what costs are separate?

Frequently asked questions

Does North Dakota require a court hearing for probate?

Not always. Informal probate can be done without a court appearance if the forms and procedures are followed. Formal probate requires hearings.

When is formal probate required in North Dakota?

According to the court, when the validity of a will needs to be decided, when someone objects to informal probate, or when more than three years have passed since the death.

Can I collect a bank account without probate?

Sometimes. The affidavit for collection of personal property may work for small estates without real estate. The holder of the property decides whether to accept it.

Where do I file?

Probate is handled by the district court. Contact the clerk of court for the county with questions about a filed case.

General information, not legal advice. Laws change and every case is different — talk to a licensed North Dakota attorney about your situation.