North Dakota Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: North Dakota district court, in the county where the decedent was domiciled or, if not domiciled in the state, any county where the decedent's property is located. The informal route uses Form 2 (Application for Informal Probate of Will and Appointment of a Personal Representative) or Form 17 (Application for Informal Appointment of Personal Representative in Intestacy). The forms are optional and the court's form controls. Formal probate is a petition with a hearing under N.D.C.C. 30.1-15-02, and no forms exist for it.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period runs.

3. 3

   Deadline: informal and formal proceedings generally cannot be commenced more than three years after the death, with listed exceptions (N.D.C.C. 30.1-12-08). After that, a late informal appointment or formal proceeding is allowed only if no proceeding concerning succession or administration occurred within the three years, and the representative has no right to possess estate assets beyond what is needed to confirm title, and claims other than expenses of administration may not be presented. On request of an interested person, a person holding a will must deliver it with reasonable promptness to a person able to secure its probate, or if none is known, to an appropriate court, with no day count stated (N.D.C.C. 30.1-11-02).

4. 4

   Who may serve, in order: the person with priority under a probated will, a surviving spouse who is a devisee, other devisees, the surviving spouse, other heirs, the decedent's guardian or conservator, a trust company, and any creditor 45 days after death (N.D.C.C. 30.1-13-03). A person under 18, or one the court finds unsuitable in formal proceedings, is not qualified. A nonresident rule is not covered here, so ask the clerk of court. The court decides who serves and appointment is not guaranteed.

5. 5

   Notice: before informal probate, notice goes only to anyone who filed a demand for notice and to any existing personal representative. For informal appointment, notice also goes to anyone with prior or equal right who has not waived in writing (Form 9 is the waiver). After appointment, the personal representative must send information of the appointment to the heirs and devisees within 30 days (Form 5) (N.D.C.C. 30.1-18-05).

6. 6

   Creditors: publishing a notice to creditors is optional. If the representative publishes once a week for three successive weeks and mails it to known or reasonably ascertainable creditors, claims are due within three months after the first publication and mailing. If no notice is published and mailed, claims may be presented within three years after the death (N.D.C.C. 30.1-19-01, 30.1-19-03).

7. 7

   Bond and routing: no bond is required in informal proceedings except for a special administrator, a will with an express bond requirement, or a written demand by an interested person or creditor with more than $1,000 at stake (N.D.C.C. 30.1-17-03, 30.1-17-05). Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate, and North Dakota has small-estate routes covered on DocDraft's small-estate-affidavit page.

North Dakota Requirements for Petition for Probate

• District Court Where Decedent Was Domiciled

  The filing goes to the district court (Clerk of District Court) in the county where the decedent was domiciled; if not domiciled in North Dakota, any county where the decedent's property is located.

• Informal Application, Form 2 or Form 17

  The informal route uses a verified application with no hearing: Form 2 to probate a will and appoint a personal representative, or Form 17 in intestacy. The forms are optional and the court's form controls. The court must provide the forms to an applicant who asks for aid, and an attorney is not required (N.D.C.C. 30.1-14-01.1).

• Three-Year Limit From Death

  Informal and formal probate or appointment proceedings generally cannot be commenced more than three years after the decedent's death, with listed exceptions (N.D.C.C. 30.1-12-08).

• Will Custodian Must Deliver the Will

  On request of an interested person, a person with custody of a will must deliver it with reasonable promptness to a person able to secure its probate, or if none is known, to an appropriate court. No day count is stated (N.D.C.C. 30.1-11-02).

• Order of Priority to Serve

  Priority runs from the person with priority under a probated will, a spouse who is a devisee, other devisees, the spouse, other heirs, the guardian or conservator, a trust company, and any creditor 45 days after death. A person under 18 is not qualified (N.D.C.C. 30.1-13-03).

• Notice to Heirs and Devisees After Appointment

  Within 30 days after appointment, the personal representative must send information of the appointment to the heirs and devisees by delivery or ordinary mail (N.D.C.C. 30.1-18-05).

• Optional Creditor Notice and Claims Period

  If notice to creditors is published once a week for three successive weeks and mailed to known or reasonably ascertainable creditors, claims are due within three months after first publication and mailing; otherwise within three years after death (N.D.C.C. 30.1-19-01, 30.1-19-03).

• No Bond by Default in Informal Proceedings

  No bond is required in informal proceedings except for a special administrator, a will with an express bond requirement, or a written demand by an interested person or creditor with more than $1,000 at stake (N.D.C.C. 30.1-17-03, 30.1-17-05).