Question 1

What is a living trust in North Dakota and how does it differ from a will?

Accepted Answer

A living trust in North Dakota is an arrangement under the North Dakota Uniform Trust Code, N.D.C.C. tit. 59, chapters 59-09 through 59-19, that holds assets for your benefit during your lifetime and passes them to your beneficiaries when you die, avoiding probate for whatever you actually retitle into it. A will only takes effect at death and must go through North Dakota probate. Anything you never fund into the trust, meaning it stays titled in your own name, is not covered by the trust and goes through probate regardless of what the trust document says.

Question 2

Do both spouses need to sign when funding a North Dakota home into a living trust?

Accepted Answer

Yes, if the home is the settlor's homestead. N.D.C.C. Section 47-18-05 requires the deed conveying or encumbering a married person's homestead to be executed and acknowledged by BOTH spouses, without regard to the homestead's value. The statute draws no exception for property held in only one spouse's separate name or for a conveyance to that spouse's own trustee, so a married settlor generally cannot fund a homestead into a living trust without the other spouse joining the deed.

Question 3

Does North Dakota require a living trust to be registered with a court?

Accepted Answer

No, not since 2007. North Dakota did require trust registration under the old Uniform Probate Code Article VII, at former N.D.C.C. chapter 30.1-32, but that chapter was repealed in the same session law that enacted the North Dakota Uniform Trust Code, S.L. 2007, ch. 549, Section 27. No replacement registration requirement was added anywhere in chapters 59-09 through 59-19. A North Dakota settlor today files nothing with any court or state agency to create or maintain a living trust.

Question 4

Does North Dakota require notarization or witnesses to create a living trust?

Accepted Answer

No. N.D.C.C. Section 59-12-02 lists only four requirements: settlor capacity, indicated intent, a definite beneficiary, and a trustee with duties to perform. Section 59-12-07 will even enforce a wholly oral trust on clear and convincing evidence. Notarization becomes relevant only when funding real property: the deed into the trust must be acknowledged before a notary or authorized officer, or proved by a subscribing witness, before the county recorder will record it (Section 47-10-05).

Question 5

Does North Dakota's spousal elective share reach assets held in my living trust?

Accepted Answer

Yes. North Dakota gives a surviving spouse a flat elective share of 50 percent of the augmented estate (N.D.C.C. Section 30.1-05-01). Section 30.1-05-02 defines a settlor's retained power to revoke his or her own trust as a general power of appointment, so a revocable living trust's assets are pulled into the augmented estate and counted against which a surviving spouse can elect, the same as if the trust did not exist.

Question 6

Will putting my house in a living trust affect my North Dakota homestead exemption?

Accepted Answer

This is genuinely unresolved. North Dakota's homestead creditor exemption protects a fixed $150,000 of home equity from judgment liens and forced sale (N.D.C.C. Section 47-18-01), with no inflation-adjustment mechanism in the statute. No North Dakota statute or exception addresses whether this exemption survives once the home is deeded into a revocable trust, and no reported North Dakota decision resolves it. Ask a North Dakota attorney before moving your homestead into a trust.

Question 7

Is there a transfer tax when I deed North Dakota real estate into my living trust?

Accepted Answer

No. North Dakota has no real estate transfer or mortgage tax of any kind, and the ban is written into the state constitution: N.D. Const. art. X, Section 27, added by voter-approved Measure 2 in 2014, bars the state and every county, township, city, or political subdivision from taxing a mortgage or transfer of real property. Recording fees still apply, running $20 to $65 or more depending on the deed's length (Section 11-18-05).

Question 8

Does North Dakota have a state estate tax that could affect my living trust?

Accepted Answer

North Dakota's estate tax chapter, N.D.C.C. 57-37.1, is still on the books but computes to zero for every death today. It is a pure pickup tax defined to equal the federal state-death-tax credit, and Congress eliminated that credit for deaths after 2004. Unlike states that repealed their pickup-tax chapters outright, North Dakota's stays codified and would resume collecting automatically if Congress ever restored the federal credit.

Question 9

Can creditors reach assets in my North Dakota revocable living trust?

Accepted Answer

During your lifetime, yes. N.D.C.C. Section 59-13-05 subjects a revocable trust's property to the settlor's own creditors to the same extent as property held outright, and North Dakota has no self-settled asset-protection trust statute that would shield it. After death, claims against nonprobate transferees, including trust beneficiaries, are barred unless presented within 90 days of the personal representative's published creditor notice, or three years after death if no notice is published (Section 30.1-19-03).

North Dakota Living Trust

Find out where you stand in North Dakota

Introduction

Key Things to Know

Key decisions before you file

Customize your Living Trust Template with DocDraft

NORTH DAKOTA Living Trust (Compact State Terms)

North Dakota Requirements for Living Trust

North Dakota Homestead Requires Both Spouses' Signature

North Dakota No Longer Requires Trust Registration

North Dakota Flat 50 Percent Spousal Elective Share

North Dakota Homestead Interaction Unresolved

North Dakota No Transfer Tax, Constitutional Ban

North Dakota Certificate of Trust and Creditor Claim Window

Frequently Asked Questions