North Dakota Last Will and Testament

Introduction

Key Things to Know

1. 1

   A last will and testament is a legal document that states who receives your property and names the person, called the personal representative or executor, who will administer your estate after you die.

2. 2

   North Dakota requires two witnesses, or a notarized acknowledgment instead. Under N.D.C.C. Section 30.1-08-02, the testator signs and then either two witnesses sign within a reasonable time after witnessing the signing or acknowledgment, or the testator acknowledges the will before a notary public in place of witnesses. An interested witness, one who is also a beneficiary, does not invalidate the will (N.D.C.C. Section 30.1-08-05).

3. 3

   A self-proving affidavit is available and needs a notary. Under N.D.C.C. Section 30.1-08-04, the testator and the two witnesses can sign a sworn affidavit before a notary public, either at the same time as the will or later. This lets the will be admitted to probate without tracking down the witnesses to testify.

4. 4

   A holographic (handwritten, unwitnessed) will is valid in North Dakota. Under N.D.C.C. Section 30.1-08-02(2), a will is valid without any witnesses if the signature and the material portions of the document are in the testator's own handwriting.

5. 5

   The will itself does not need a notary in the standard route. North Dakota's normal execution method uses two witnesses, not a notary. A notary comes in only two ways: as an alternative to witnesses under Section 30.1-08-02(1)(c)(2), or for the separate, optional self-proving affidavit under Section 30.1-08-04.

6. 6

   You must be 18 and of sound mind to make a will. N.D.C.C. Section 30.1-08-01 requires the testator to be an adult of sound mind; the self-proving affidavit form itself recites that the testator is 18 or older, of sound mind, and under no constraint or undue influence.

7. 7

   You can revoke a will by a later will or by a physical act. Under N.D.C.C. Section 30.1-08-07, a will is revoked by executing a subsequent will that revokes it expressly or by inconsistency, or by burning, tearing, canceling, obliterating, or destroying it with intent to revoke. A divorce also revokes provisions for a former spouse under the change-of-circumstances rules cross-referenced in Section 30.1-08-08.

North Dakota Requirements for Last Will and Testament

• Two Witnesses, or a Notarized Acknowledgment Instead

  Under N.D.C.C. Section 30.1-08-02, a North Dakota will is executed with two witnesses who sign within a reasonable time after witnessing the testator's signing or acknowledgment, or, in place of witnesses, the testator acknowledges the will before a notary public.

• An Interested Witness Does Not Invalidate the Will

  Under N.D.C.C. Section 30.1-08-05, a will or any provision of it is not invalid because it is signed by an interested witness, meaning a witness who is also a beneficiary. Using a disinterested witness where possible avoids any question later.

• A Self-Proving Affidavit Is Available and Needs a Notary

  Under N.D.C.C. Section 30.1-08-04, the testator and the two witnesses may sign a self-proving affidavit before a notary public, either at the same time as the will or afterward, so the will can be admitted to probate without locating the witnesses to testify.

• Holographic (Handwritten) Wills Are Valid

  Under N.D.C.C. Section 30.1-08-02(2), a will is valid without any witnesses if the signature and the material portions of the document are in the testator's own handwriting. Intent may be shown by other evidence, including non-handwritten portions.

• No Notary Needed for the Standard, Witness-Based Route

  North Dakota's standard execution method uses two witnesses, not a notary. A notary is involved only as an alternative to witnesses under Section 30.1-08-02(1)(c)(2), or for the separate, optional self-proving affidavit under Section 30.1-08-04.

• Testator Must Be 18 and of Sound Mind

  Under N.D.C.C. Section 30.1-08-01, any adult who is of sound mind may make a will; the age of adulthood in North Dakota is 18. The statutory self-proving affidavit form recites that the testator is 18 or older, of sound mind, and under no constraint or undue influence.

• Revoke by a Later Will or a Physical Act

  Under N.D.C.C. Section 30.1-08-07, a will is revoked by executing a subsequent will that revokes it expressly or by inconsistency, or by a revocatory act such as burning, tearing, canceling, obliterating, or destroying it with the intent to revoke.

• Divorce Revokes Provisions for a Former Spouse

  A change of circumstances generally does not revoke a will, except as provided under the cross-referenced change-of-circumstances rules in N.D.C.C. Section 30.1-08-08, under which a divorce revokes provisions made in favor of a former spouse.