30.1-01-01. (1-101) Short title.

This title shall be known and may be cited as the Uniform Probate Code.

Source: S.L. 1973, ch. 257, § 1.

Law Reviews.

The New North Dakota Probate Code, W. Jeremy Davis, 49 N.D. L. Rev. 543 (1973).

The Uniform Probate Code: The Way to Probate in North Dakota, 50 N.D. L. Rev. 593 (1974).

North Dakota Estate Planning under the Tax Reform Act of 1976, 54 N.D. L. Rev. 7 (1977).

Comparative Legislation.

Jurisdictions which have enacted the Uniform Probate Code include:

Alaska Stat. §§ 13.06.005 to 13.36.100.

Ariz. Rev. Stat. Ann. §§ 14-1101 to 14-7307.

Colo. Rev. Stat. §§ 15-10-101 to 15-17-101.

Fla. Stat. §§ 731.005 to 735.302, 737.101 to 737.512.

Hawaii Rev. Stat. §§ 560:1-101 to 560:8-102.

Idaho Code §§ 15-1-101 to 15-7-307.

Ky. Rev. Stat. §§ 386.650 to 386.670.

Me. Rev. Stat. Ann. tit. 18-A, §§ 1-101 to 8-401.

Mich. Comp. Laws §§ 700.1 to 700.993.

Minn. Stat. §§ 524.1-101 to 524.8-103.

Mont. Code Ann. §§ 72-1-101 to 72-5-502.

Neb. Rev. Stat. §§ 30-2201 to 30-2902.

N.M. Stat. Ann. §§ 45-1-101 to 45-7-401.

S.C. Code Ann. §§ 62-1-100 to 62-7-604.

Utah Code Ann. §§ 75-1-101 to 75-8-101.

30.1-01-02. (1-102) Purposes — Rule of construction.

1. This title shall be liberally construed and applied to promote its underlying purposes and policies.
2. The underlying purposes and policies of this title are:
   1. To simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons.
   2. To discover and make effective the intent of a decedent in distribution of the decedent’s property.
   3. To promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent’s successors.
   4. To facilitate the use and enforcement of certain trusts.
   5. To make uniform the law among the various jurisdictions.

Source: S.L. 1973, ch. 257, § 1.

30.1-01-03. (1-106) Effect of fraud and evasion.

Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this title, or if fraud is used to avoid or circumvent the provisions or purposes of this title, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during the decedent’s lifetime which affects the succession of the decedent’s estate.

Source: S.L. 1973, ch. 257, § 1.

30.1-01-04. (1-107) Evidence of death or status.

In addition to the rules of evidence in courts of general jurisdiction, the following rules relating to a determination of death and status apply:

1. Death occurs when an individual is determined to be dead under chapter 23-06.3.
2. A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death, and the identity of the decedent.
3. A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
4. In the absence of prima facie evidence of death under subsection 2 or 3, the fact of death may be established by clear and convincing evidence, including circumstantial evidence.
5. An individual whose death is not established under this section, who is absent for a continuous period of five years, during which the person has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
6. In the absence of evidence disputing the time of death stated on a document described in subsection 2 or 3, a document described in subsection 2 or 3 that states a time of death one hundred twenty hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by one hundred twenty hours.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 1; 1993, ch. 334, § 1; 1995, ch. 322, § 27.

Collateral References.

Uniform Simultaneous Death Act, construction, application, and effect of, 39 A.L.R.3d 1332.

Will provision: construction of provision as to which of two or more parties shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time, 40 A.L.R.3d 359.

30.1-01-05. (1-108) Acts by holder of general power.

For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, to register a trust, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all coholders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.

Source: S.L. 1973, ch. 257, § 1.

30.1-01-06. (1-201) General definitions.

Subject to additional definitions contained in the subsequent chapters which are applicable to specific chapters, and unless the context otherwise requires, in this title:

1. “Agent” includes an attorney-in-fact under a durable or nondurable power of attorney, an individual authorized to make decisions concerning another’s health care, and an individual authorized to make decisions for another under a natural death act.
2. “Application” means a written request to the court for an order of informal probate or appointment under chapter 30.1-14.
3. “Augmented estate” means the estate described in section 30.1-05-02.
4. “Beneficiary”, as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust; as it relates to a beneficiary of a beneficiary designation, refers to a beneficiary of an account with a payable on death designation, of a security registered in beneficiary form transferable on death, or other nonprobate transfer at death; and, as it relates to a “beneficiary designated in a governing instrument”, includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, or a person in whose favor a power of attorney or a power held in any individual, fiduciary, or representative capacity is exercised.
5. “Beneficiary designation” refers to a governing instrument naming a beneficiary of an account with payable on death designation, of a security registered in beneficiary form transferable on death, or other nonprobate transfer at death.
6. “Child” includes an individual entitled to take as a child under this title by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
7. “Claims”, in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.
8. “Conservator” means a person who is appointed by a court to manage the estate of a protected person, and includes limited conservators as defined in this section.
9. “Court” means the court having jurisdiction in matters relating to the affairs of decedents.
10. “Descendant” of an individual means all descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in this title.
11. “Devise”, when used as a noun, means a testamentary disposition of real or personal property, and when used as a verb, means to dispose of real or personal property by will.
12. “Devisee” means a person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
13. “Disability” means cause for a protective order as described in section 30.1-29-01.
14. “Distributee” means any person who has received property of a decedent from the decedent’s personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in the trustee’s hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will to the extent of the devised assets.
15. “Estate” includes the property of the decedent, trust, or other person whose affairs are subject to this title as originally constituted and as it exists from time to time during administration.
16. “Exempt property” means that property of a decedent’s estate which is described in section 30.1-07-01.
17. “Expert examiner” means:
    1. A licensed physician;
    2. A psychiatrist;
    3. A licensed psychologist trained in a clinical program;
    4. An advanced practice registered nurse who is licensed under chapter 43-12.1 within the role of a certified nurse practitioner or certified clinical nurse specialist, who has completed the requirements for a minimum of a master’s degree from an accredited program, and who is functioning within the scope of practice in one of the population foci as approved by the state board of nursing; or
    5. A physician assistant who is licensed under chapter 43-17 and authorized by the state board of medical examiners to practice in this state.
18. “Fiduciary” includes a personal representative, guardian, conservator, and trustee.
19. “Foreign personal representative” means a personal representative appointed by another jurisdiction.
20. “Formal proceedings” means proceedings conducted before a judge with notice to interested persons.
21. “Governing instrument” means a deed, will, trust, insurance or annuity policy, account with payable on death designation, security registered in beneficiary form transferable on death, pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.
22. “Guardian” means a person who or nonprofit corporation that has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, and includes limited guardians as defined in this section, but excludes one who is merely a guardian ad litem.
23. “Heirs”, except as controlled by section 30.1-09.1-11, means persons, including the surviving spouse and the state, who are entitled under the statutes of intestate succession to the property of a decedent.
24. “Incapacitated person” means an individual described in section 30.1-26-01.
25. “Informal proceedings” means those conducted by the court for probate of a will or appointment of a personal representative without notice to interested persons.
26. “Interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person. The term also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
27. “Issue” of a person means descendant as defined in subsection 10.
28. “Joint tenants with the right of survivorship” and “community property with the right of survivorship” includes co-owners of property held under circumstances that entitle one or more to the whole of the property on the death of the other or others, but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party’s contribution.
29. “Lease” includes an oil, gas, or other mineral lease.
30. “Letters” includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
31. “Limited conservator” means a person or nonprofit corporation, appointed by the court, to manage only those financial resources specifically enumerated by the court for the person with limited capacity and includes limited conservators as described by section 30.1-29-20.
32. “Limited guardian” means a person or nonprofit corporation, appointed by the court, to supervise certain specified aspects of the care of a person with limited capacity and includes limited guardians as described by section 30.1-28-04.
33. “Minor” means a person who is under eighteen years of age.
34. “Mortgage” means any conveyance, agreement, or arrangement in which property is encumbered or used as security.
35. “Nonresident decedent” means a decedent who was domiciled in another jurisdiction at the time of death.
36. “Organization” means a corporation, limited liability company, government or governmental subdivision or agency, business trust, estate, trust, partnership, joint venture, association, or any other legal or commercial entity.
37. “Parent” includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title, by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.
38. “Payer” means a trustee, insurer, business entity, employer, government, governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments.
39. “Person” means an individual, a corporation, a limited liability company, an organization, or other legal entity.
40. “Person with limited capacity” is as defined in section 30.1-26-01.
41. “Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. “General personal representative” excludes special administrator.
42. “Petition” means a written request to the court for an order after notice.
43. “Proceeding” includes action at law and suit in equity.
44. “Property” includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
45. “Protected person” is as defined in section 30.1-26-01.
46. “Protective proceeding” means a proceeding described in section 30.1-26-01.
47. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
48. “Security” includes any note, stock, treasury stock, bond, debenture, membership interest in a limited liability company, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
49. “Settlement”, in reference to a decedent’s estate, includes the full process of administration, distribution, and closing.
50. “Sign” means, with present intent to authenticate or adopt a record other than a will, to execute or adopt a tangible symbol or to attach to or logically associate with the record an electronic symbol, sound, or process.
51. “Special administrator” means a personal representative as described by sections 30.1-17-14 through 30.1-17-18.
52. “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction of the United States.
53. “Successor personal representative” means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
54. “Successors” means persons, other than creditors, who are entitled to property of a decedent under the decedent’s will or this title.
55. “Supervised administration” refers to the proceedings described in chapter 30.1-16.
56. “Survive” means that an individual has neither predeceased an event, including the death of another individual, nor predeceased an event under sections 30.1-04-04 and 30.1-09.1-02. The term includes its derivatives, such as “survives”, “survived”, “survivor”, and “surviving”.
57. “Testacy proceeding” means a proceeding to establish a will or determine intestacy.
58. “Trust” includes an express trust, private or charitable, with additions thereto, wherever and however created. The term also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. The term excludes other constructive trusts and excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in custodial arrangements pursuant to chapter 11-22, chapter 12-48, sections 25-01.1-19 to 25-01.1-21, chapter 32-10, section 32-16-37, chapter 32-26, former chapter 47-24, chapter 47-24.1, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.
59. “Trustee” includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.
60. “Visitor” means an individual, in guardianship proceedings, who is in nursing or social work and is an officer, employee, or special appointee of the court with no personal interest in the proceedings.
61. “Ward” means an individual described in section 30.1-26-01.
62. “Will” includes codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.

Source: S.L. 1973, ch. 257, § 1; 1981, ch. 320, § 76; 1983, ch. 313, § 5; 1985, ch. 369, § 2; 1985, ch. 508, § 23; 1991, ch. 54, § 18; 1991, ch. 326, § 115; 1991, ch. 595, § 1; 1993, ch. 54, § 106; 1993, ch. 334, § 2; 1995, ch. 322, §§ 1, 2, 27; 2009, ch. 283, § 1; 2017, ch. 230, § 1, effective August 1, 2017.

Cross-References.

The term “will” includes “codicil”, see § 1-01-49, subs. 19.

30.1-02-01. (1-301) Territorial application.

Except as otherwise provided in this title, this title applies to:

1. The affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state.
2. The property of nonresidents located in this state or property coming into the control of a fiduciary which is subject to the laws of this state.
3. Incapacitated persons and minors in this state.
4. Survivorship and related accounts in this state.
5. Trusts subject to administration in this state.

Source: S.L. 1973, ch. 257, § 1.

30.1-02-02. (1-302) Subject matter jurisdiction.

The district court has jurisdiction over all subject matter relating to guardianship, probate, and testamentary matters, including:

1. Estates of decedents, including construction of wills and determination of heirs and successors of decedents.
2. Estates of protected persons.
3. Protection of minors and incapacitated persons.
4. Trusts.

Source: S.L. 1973, ch. 257, § 1; 1983, ch. 82, § 64; 1983, ch. 352, § 2; 1991, ch. 326, § 116.

Cross-References.

District court jurisdiction, see N.D. Const. Art. VI, § 8.

Jurisdiction over persons, see N.D.C.C. § 30.1-12-06.

Subject matter jurisdiction of devolution and administration proceedings, see N.D.C.C. § 30.1-12-05.

30.1-02-03. (1-303) Venue — Multiple proceedings — Transfer.

1. Where a proceeding under this title could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed.
2. If proceedings concerning the same estate, protected person, ward, or trust are commenced in more than one court of this state, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.
3. If a court finds that in the interest of justice a proceeding or a file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court.

Source: S.L. 1973, ch. 257, § 1.

30.1-02-04. (1-304) Practice in court.

Unless specifically provided to the contrary in this title or unless inconsistent with its provisions, the Rules of Civil Procedure, including the rules concerning vacation of orders and appellate review, govern formal proceedings under this title.

Source: S.L. 1973, ch. 257, § 1.

30.1-02-05. (1-305) Records and certified copies.

The court or clerk of court shall keep a record for each decedent, ward, protected person, or trust involved in any document which may be filed with the court under this title, including petitions and applications, demands for notices or bonds, and of any orders or responses relating thereto by the court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information. Certifications of probated wills must indicate whether the decedent was domiciled in this state and whether the probate was formal or informal. Certifications of letters must show the date of appointment.

Source: S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 1.

30.1-02-06. (1-307) Powers.

The acts and orders which this title specifies as performable by the district court may be performed either by a judge of the appropriate court or by a person, including the clerk, designated by the appropriate court by a written order filed and recorded in the office of the court. However, without a written order of the court, the clerk may sign all appropriate documents in uncontested informal probate matters if the requirements of sections 30.1-12-08 and 30.1-13-01 have been satisfied, at least one hundred twenty hours have elapsed since the decedent’s death, and the person seeking appointment as personal representative is named in the will or otherwise has priority under section 30.1-13-03 or others entitled to appointment have renounced the right to appointment.

Source: S.L. 1973, ch. 257, § 1; 1995, ch. 147, § 9.

30.1-02-06.1. (1-308) Appeals.

Appellate review, including the right to appellate review, interlocutory appeal, provisions as to time, manner, notice, appeal bond, stays, scope of review, record on appeal, briefs, arguments, and power of the appellate court, is governed by the rules applicable to the appeals to the supreme court in equity cases from the district court, except that in proceedings in which jury trial has been had as a matter of right, the rules applicable to the scope of review in jury cases apply.

Source: S.L. 1981, ch. 319, § 49.

30.1-02-07. (1-310) Oath or affirmation on filed documents.

Except as otherwise specifically provided in this title or by rule, every document filed with the district court under this title, including applications, petitions, and demands for notice, is deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and penalties for perjury may follow deliberate falsification therein.

Source: S.L. 1973, ch. 257, § 1; 1991, ch. 326, § 117.

30.1-03-01. (1-401) Notice — Method and time of giving.

1. If notice of a hearing on any petition is required and, except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or the interested person’s attorney if the interested person has appeared by attorney or requested that notice be sent to the interested person’s attorney. Notice shall be given:
   1. By mailing a copy thereof at least fourteen days before the time set for the hearing by certified or ordinary first-class mail addressed to the person being notified at the post-office address given in that person’s demand for notice, if any, or at that person’s office or place of residence, if known;
   2. By delivering a copy thereof to the person being notified personally at least fourteen days before the time set for the hearing; or
   3. If the address, or identity of any person is not known and cannot be ascertained with reasonable diligence, by publishing at least once a week for three consecutive weeks, a copy thereof in a newspaper having general circulation in the county where the hearing is to be held, the last publication of which is to be at least ten days before the time set for the hearing.
2. The court for good cause shown may provide for a different method or time of giving notice for any hearing.
3. Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Initiation of probate proceedings, see N.D.C.C. §§ 30.1-14-01, 30.1-15-02.

Proceedings for review of employment of agents, compensation of personal representatives, and employees of estate, see N.D.C.C. § 30.1-18-21.

30.1-03-02. (1-402) Notice — Waiver.

A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by the person or the person’s attorney and filed in the proceeding.

Source: S.L. 1973, ch. 257, § 1.

30.1-03-03. (1-403) Pleadings — When parties bound by others — Notice.

In formal proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons, and in judicially supervised settlements, the following apply:

1. Interests to be affected must be described in pleadings that give reasonable information to owners by name or class, by reference to the instrument creating the interests or in another appropriate manner.
2. A person is bound by an order binding another in the following cases:
   1. An order binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, binds another person to the extent that person’s interests, as objects, takers in default, or otherwise, are subject to the power.
   2. To the extent there is no conflict of interest between them or among persons represented, an order binding a conservator binds the person whose estate the conservator controls; an order binding a guardian binds the ward if no conservator of the ward’s estate has been appointed; an order binding a trustee binds a beneficiary of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a former fiduciary and in proceedings involving creditors or other third parties; an order binding a personal representative binds a person interested in the undistributed assets of a decedent’s estate in actions or proceedings by or against the estate; and an order binding a sole holder or all coholders of a general testamentary power of appointment binds other persons to the extent their interests as objects, takers in default, or otherwise are subject to the power.
   3. Unless otherwise represented, a minor or an incapacitated, unborn, or unascertained person is bound by an order to the extent the person’s interest is adequately represented by another party having a substantially identical interest in the proceeding.
3. If no conservator or guardian has been appointed, a parent may represent a minor child.
4. Notice is required as follows:
   1. The notice prescribed by section 30.1-03-01 must be given to every interested person or to one who can bind an interested person as described in subdivision a or b of subsection 2. Notice may be given both to a person and to another who may bind that person.
   2. Notice is given to unborn or unascertained persons who are not represented under subdivision a or b of subsection 2 by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.
5. At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall state its reasons for appointing a guardian ad litem as a part of the record of the proceeding.

Source: S.L. 1973, ch. 257, § 1; 1999, ch. 294, § 1.

30.1-04-01. (2-101) Intestate estate.

1. Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this title, except as modified by the decedent’s will.
2. A decedent, by will, may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed the intestate share.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 3; 1995, ch. 322, § 27.

Cross-References.

Descent and distribution of real property subject to homestead estate, see N.D.C.C. § 30-16-04.

30.1-04-02. (2-102) Share of spouse.

The intestate share of a decedent’s surviving spouse is:

1. The entire intestate estate if:
   1. No descendant or parent of the decedent survives the decedent; or
   2. All of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
2. The first three hundred thousand dollars, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
3. The first two hundred twenty-five thousand dollars, plus one-half of any balance of the intestate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent.
4. The first one hundred fifty thousand dollars, plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 4; 1995, ch. 322, § 27; 2009, ch. 283, § 2.

30.1-04-03. (2-103) Share of heirs other than surviving spouse.

Any part of the intestate estate not passing to a decedent’s surviving spouse under section 30.1-04-02, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:

1. To the decedent’s descendants by representation.
2. If there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent.
3. If there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation.
4. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:
   1. Half to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and
   2. Half to the decedent’s maternal grandparents equally if both survive, or to the surviving maternal grandparent, or to the descendants of the decedent’s maternal grandparents or either of them if both are deceased, the descendants taking by representation.
5. If there is no surviving descendant, parent, or descendant of a parent, but the decedent 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, to the decedent’s relatives on the side with one or more surviving members in the manner as described in subsection 4.
6. If there is no surviving spouse, descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent, but the intestate decedent has one deceased spouse who has one or more descendants who survive the decedent, to those descendants by representation or has more than one deceased spouse who has one or more descendants who survive the decedent, the estate is divided into as many equal shares as there are deceased spouses, each share passing to those descendants by representation.

Source: S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 2; 1993, ch. 334, § 5; 1995, ch. 322, § 27; 2009, ch. 283, § 3.

30.1-04-03.1. (2-113) Individuals related to decedent through two lines.

An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.

Source: S.L. 1977, ch. 295, § 2; 1993, ch. 334, § 6; 1995, ch. 322, § 27.

30.1-04-04. (2-104) Requirement that heir survive decedent for one hundred twenty hours — Individual in gestation.

1. For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in subsection 2:
   1. An individual who was born before a decedent’s death but who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual who was born before the decedent’s death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period.
   2. An individual who was in gestation at a decedent’s death is deemed to be living at the decedent’s death if the individual lives one hundred twenty hours after birth. If it is not established by clear and convincing evidence that an individual who was in gestation at the decedent’s death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.
2. This section does not apply if it would result in a taking of the intestate estate by the state under section 30.1-04-05.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 7; 1995, ch. 322, § 27; 2009, ch. 283, § 4.

Collateral References.

Uniform Simultaneous Death Act, construction, application, and effect of, 39 A.L.R.3d 1332.

30.1-04-05. (2-105) No taker.

If there is no taker under the provisions of this title, the intestate estate passes to the state for the support of the common schools and an action for the recovery of such property and to reduce it into the possession of the state or for its sale and conveyance may be brought by the attorney general or by the state’s attorney in the district court of the county in which the property is situated.

Source: S.L. 1973, ch. 257, § 1.

30.1-04-06. (2-106) Representation. [Repealed]

Repealed by S.L. 1995, ch. 322, § 26.

30.1-04-07. (2-107) Kindred of half blood.

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Cousins: descent and distribution to and among cousins as affected by whole blood or half blood relationship, 54 A.L.R.2d 1009, 1017.

Uncles and aunts of the whole blood and of the half blood, descent and distribution to and among, 55 A.L.R.2d 643, 648.

Descent and distribution: rights of inheritance as between kindred of whole or half blood, 47 A.L.R.4th 561.

30.1-04-08. (2-108) Reserved.

Source: S.L. 2009, ch. 283, § 5.

30.1-04-09. (2-114) Parent barred from inheriting in certain circumstances.

1. 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 re-established 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.
2. 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.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 1; 1993, ch. 334, § 10; 1995, ch. 322, § 27; 2009, ch. 283, § 6.

30.1-04-10. (2-109) Advancements.

1. If an individual dies intestate as to all or a portion of the individual’s estate, property the decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against the heir’s intestate share only if the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent’s intestate estate.
2. For purposes of subsection 1, property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent’s death, whichever first occurs.
3. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides otherwise.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 11; 1995, ch. 322, § 27.

30.1-04-11. (2-110) Debts to decedent.

A debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor’s descendants.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 12; 1995, ch. 322, § 27.

Cross-References.

Claims against decedent, see N.D.C.C. § 30.1-12-04.

30.1-04-12. (2-111) Alienage.

No individual is disqualified to take as an heir because the individual or an individual through whom that individual claims is or has been an alien.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 13; 1995, ch. 322, § 27.

30.1-04-13. (2-112) Dower and curtesy abolished.

The estates of dower and curtesy are abolished.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 14; 1995, ch. 322, § 27.

Cross-References.

Dower and curtesy abolished, see N.D.C.C. § 14-07-09.

30.1-04-14. (2-115) Definitions.

In sections 30.1-04-14 through 30.1-04-20:

1. “Adoptee” means an individual who is adopted.
2. “Assisted reproduction” means a method of causing pregnancy other than sexual intercourse.
3. “Divorce” means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage.
4. “Functioned as a parent of the child” means behaving toward the child in a manner consistent with being the child’s parent and performing functions that are customarily performed by a parent, such as fulfilling parental responsibilities toward the child, recognizing or holding out the child as the individual’s child, materially participating in the child’s upbringing, and residing with the child in the same household as regular members of that household.
5. “Genetic father” means the man whose sperm fertilized the egg of a child’s genetic mother. If the father-child relationship is established under the presumption of paternity under subdivision a, b, or c of subsection 2 of section 14-20-07, the term means only the man for whom that relationship is established.
6. “Genetic mother” means the woman whose egg was fertilized by the sperm of the child’s genetic father.
7. “Genetic parent” means a child’s genetic father or genetic mother.
8. “Incapacity” means the inability of an individual to function as a parent of a child because of the individual’s physical or mental condition.
9. “Relative” means a grandparent or a descendant of a grandparent.

Source: S.L. 2009, ch. 283, § 7.

30.1-04-15. (2-116) Parent-child relationship — Effect.

Except as otherwise provided in subsections 2 through 4 of section 30.1-04-18, if a parent-child relationship exists or is established under sections 30.1-04-14 through 30.1-04-20, the parent is a parent of the child and the child is a child of the parent for purposes of intestate succession.

Source: S.L. 2009, ch. 283, § 8.

Effective Date.

This section became effective August 1, 2009.

30.1-04-16. (2-117) Parent-child relationship — No distinction based on marital status.

Except as otherwise provided in section 30.1-04-09, 30.1-04-18, 30.1-04-19, or 30.1-04-20, a parent-child relationship exists between a child and the child’s genetic parents, regardless of their marital status.

Source: S.L. 2009, ch. 283, § 9.

Effective Date.

This section became effective August 1, 2009.

30.1-04-17. (2-118) Parent-child relationship — Adoptee and adoptee’s adoptive parent or parents.

1. A parent-child relationship exists between an adoptee and the adoptee’s adoptive parent or parents.
2. For purposes of subsection 1:
   1. An individual who is in the process of being adopted by a married couple when one of the spouses dies is treated as adopted by the deceased spouse if the adoption is subsequently granted to the decedent’s surviving spouse.
   2. A child of a genetic parent who is in the process of being adopted by a genetic parent’s spouse when the spouse dies is treated as adopted by the deceased spouse if the genetic parent survives the deceased spouse by one hundred twenty hours.
3. If, after a parent-child relationship is established between a child of assisted reproduction and a parent under section 30.1-04-19 or between a gestational child and a parent under section 30.1-04-20, the child is in the process of being adopted by the parent’s spouse when that spouse dies, the child is treated as adopted by the deceased spouse for purposes of subdivision b of subsection 2.

Source: S.L. 2009, ch. 283, § 10.

Effective Date.

This section became effective August 1, 2009.

30.1-04-18. (2-119) Parent-child relationship — Adoptee and adoptee’s genetic parents.

1. Except as otherwise provided in subsections 2 through 4, a parent-child relationship does not exist between an adoptee and the adoptee’s genetic parents.
2. A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and:
   1. The genetic parent whose spouse adopted the individual; and
   2. The other genetic parent, but only for purposes of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent.
3. A parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic parent, but only for purposes of the right of the adoptee or a descendant of the adoptee to inherit from or through either genetic parent.
4. A parent-child relationship exists between both genetic parents and an individual who is adopted after the death of both genetic parents, but only for purposes of the right of the adoptee or a descendant of the adoptee to inherit through either genetic parent.
5. If, after a parent-child relationship is established between a child of assisted reproduction and a parent or parents under section 30.1-04-19 or between a gestational child and a parent or parents under section 30.1-04-20, the child is adopted by another or others, the child’s parent or parents under section 30.1-04-19 or 30.1-04-20 are deemed the child’s genetic parent or parents for purposes of this section.

Source: S.L. 2009, ch. 283, § 11.

Effective Date.

This section became effective August 1, 2009.

30.1-04-19. (2-120) Parent-child relationship — Child conceived by assisted reproduction other than a child born to a gestational carrier.

1. In this section:
   1. “Birth mother” means a woman, other than a gestational carrier under section 30.1-04-20, who gives birth to a child of assisted reproduction. The term is not limited to a woman who is the child’s genetic mother.
   2. “Child of assisted reproduction” means a child conceived by means of assisted reproduction by a woman other than a gestational carrier under section 30.1-04-20.
   3. “Third-party donor” means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include a husband who provides sperm, or a wife who provides eggs, that are used for assisted reproduction by the wife; the birth mother of a child of assisted reproduction; or an individual who is determined under subsection 5 or 6 to have a parent-child relationship with a child of assisted reproduction.
2. A parent-child relationship does not exist between a child of assisted reproduction and a third-party donor.
3. A parent-child relationship exists between a child of assisted reproduction and the child’s birth mother.
4. Except as otherwise provided in subsections 9 and 10, a parent-child relationship exists between a child of assisted reproduction and the husband of the child’s birth mother if the husband provided the sperm that the birth mother used during his lifetime for assisted reproduction, and the husband is the genetic father of the child.
5. A birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual.
6. Except as otherwise provided in subsections 7, 9, and 10, and unless a parent-child relationship is established under subsection 4 or 5, a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child. Consent to assisted reproduction by the birth mother with intent to be treated as the other parent of the child is established if the individual:
   1. Before or after the child’s birth, signed a record that, considering all the facts and circumstances, evidences the individual’s consent; or
   2. In the absence of a signed record under subdivision a, functioned as a parent of the child no later than two years after the child’s birth; intended to function as a parent of the child no later than two years after the child’s birth but was prevented from carrying out that intent by death, incapacity, or other circumstances; or intended to be treated as a parent of a posthumously conceived child if that intent is established by clear and convincing evidence.
7. For purposes of subdivision a of subsection 6, neither an individual who signed a record more than two years after the birth of the child, nor a relative of that individual who is not also a relative of the birth mother, inherits from or through the child unless the individual functioned as a parent of the child before the child reached the age of majority.
8. For purposes of subdivision b of subsection 6, if the birth mother is married and no divorce proceedings are pending or if the birth mother is a surviving spouse and at her deceased spouse’s death no divorce proceedings were then pending then, in the absence of clear and convincing evidence to the contrary, her spouse or deceased spouse is deemed to have satisfied subdivision b of subsection 6.
9. If a married couple are divorced before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of the birth mother’s former spouse, unless the former spouse consented in a record that if assisted reproduction were to occur after divorce, the child would be treated as the former spouse’s child.
10. If, in a record, an individual withdraws consent to assisted reproduction before placement of eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of that individual, unless the individual subsequently satisfies the requirements of subsection 6.
11. If, under this section, an individual is a parent of a child of assisted reproduction who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of subdivision b of subsection 1 of section 30.1-04-04 if the child is in utero not later than thirty-six months after the individual’s death; or born not later than forty-five months after the individual’s death.

Source: S.L. 2009, ch. 283, § 12.

Effective Date.

This section became effective August 1, 2009.

30.1-04-20. (2-121) Parent-child relationship — Child born to a gestational carrier.

1. In this section:
   1. “Gestational agreement” means an enforceable or unenforceable agreement for assisted reproduction in which a woman agrees to carry a child to birth for an intended parent, intended parents, or an individual described in subsection 5.
   2. “Gestational carrier” means a woman who is not an intended parent and who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.
   3. “Gestational child” means a child born to a gestational carrier under a gestational agreement.
   4. “Intended parent” means an individual who entered into a gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child.
2. A parent-child relationship is conclusively established by a court order designating the parent or parents of a gestational child.
3. A parent-child relationship between a gestational child and the child’s gestational carrier does not exist unless the gestational carrier is:
   1. Designated as a parent of the child in a court order described in subsection 2; or
   2. The child’s genetic mother and a parent-child relationship does not exist with an individual other than the gestational carrier under this section.
4. In the absence of a court order under subsection 2, a parent-child relationship exists between a gestational child and an intended parent who:
   1. Functioned as a parent of the child no later than two years after the child’s birth; or
   2. Died while the gestational carrier was pregnant if:
      1. There were two intended parents and the other intended parent survived the birth of the child and functioned as a parent of the child no later than two years after the child’s birth;
      2. There were two intended parents, the other intended parent also died while the gestational carrier was pregnant, and a relative of either deceased intended parent or the spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent of the child no later than two years after the child’s birth; or
      3. There was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child’s birth.
5. In the absence of a court order under subsection 2, a parent-child relationship exists between a gestational child and an individual whose sperm or eggs were used after the individual’s death or incapacity to conceive a child under a gestational agreement entered into after the individual’s death or incapacity if the individual intended to be treated as the parent of the child. The individual’s intent can be shown by:
   1. A record, signed by the individual that, considering all the facts and circumstances, evidences the individual’s intent; or
   2. Other facts and circumstances establishing the individual’s intent by clear and convincing evidence.
6. Except as otherwise provided in subsection 7, and unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of subdivision b of subsection 5 if:
   1. The individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child;
   2. When the individual deposited the sperm or eggs, the individual was married and no divorce proceedings were pending; and
   3. The individual’s spouse or surviving spouse functioned as a parent of the child not later than two years after the child’s birth.
7. The presumption under subsection 6 does not apply if there is a court order under subsection 2 or a signed record that satisfies subdivision a of subsection 5.
8. If, under this section, an individual is a parent of a gestational child who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of subdivision b of subsection 1 of section 30.1-04-04 if the child is in utero not later than thirty-six months after the individual’s death or born not later than forty-five months after the individual’s death.
9. This section does not affect other law of this state regarding the enforceability or validity of a gestational agreement.

Source: S.L. 2009, ch. 283, § 13.

Effective Date.

This section became effective August 1, 2009.

30.1-04-21. (2-122) Equitable adoption.

Sections 30.1-04-14 through 30.1-04-20 do not preclude, limit, or affect application of the doctrine of equitable adoption.

Source: S.L. 2009, ch. 283, § 14.

Effective Date.

This section became effective August 1, 2009.

30.1-05-01. (2-202) Elective share.

1. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this chapter, to take an elective share amount equal to fifty percent of the augmented estate.
2. If the sum of the amounts described in subdivision d of subsection 2 of section 30.1-05-02, subdivision a of subsection 1 of section 30.1-05-03, and that part of the elective-share amount payable from the decedent’s probate estate and nonprobate transfers to others under subsections 2 and 3 of section 30.1-05-03 is less than seventy-five thousand dollars, the surviving spouse is entitled to a supplemental elective-share amount equal to seventy-five thousand dollars minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent’s probate estate and from recipients of the decedent’s nonprobate transfers to others in the order of priority set forth in subsections 2 and 3 of section 30.1-05-03.
3. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt property, and family allowance, if any, are not charged against, but are in addition to, the elective-share and supplemental elective-share amounts.
4. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27; 2009, ch. 283, § 15.

Cross-References.

Divorce, annulment, or separation, effect of, see N.D.C.C. § 30.1-10-02.

30.1-05-02. (2-201, 2-204 through 2-208) Augmented estate.

1. 1. In this section:
      1. “Decedent’s nonprobate transfers to others” means the decedent’s nonprobate transfers to persons, other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors, that are included in the augmented estate under subdivision b of subsection 2.
      2. “Fractional interest in property held in joint tenancy with the right of survivorship”, whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.
      3. “Marriage”, as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent’s surviving spouse.
      4. “Nonadverse party” means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that the person possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.
      5. “Power” or “power of appointment” includes a power to designate the beneficiary of a beneficiary designation.
      6. “Presently exercisable general power of appointment” means a power of appointment under which, at the time in question, the decedent, whether or not the decedent then had the capacity to exercise the power, held a power to create a present or future interest in the decedent, the decedent’s creditors, the decedent’s estate, or the creditors of the decedent’s estate, and includes a power to revoke or invade the principle of a trust or other property arrangement.
      7. “Probate estate” means property, whether movable or immovable, wherever situated, that would pass by intestate succession if the decedent died without a valid will.
      8. “Property” includes values subject to a beneficiary designation.
      9. “Right to income” includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.
      10. “Transfer”, as it relates to a transfer by or of the decedent, includes:
          1. An exercise or release of a presently exercisable general power of appointment held by the decedent;
          2. A lapse at death of a presently exercisable general power of appointment held by the decedent; and
          3. An exercise, release, or lapse of a general power of appointment that the decedent created in the decedent and of a power described in subparagraph b of paragraph 2 of subdivision b of subsection 2 that the decedent conferred on a nonadverse party.
   2. In subparagraph a of paragraph 3 of subdivision b of subsection 2, “termination”, with respect to a right or interest in property, means that the right or interest terminated by the terms of the governing instrument or that the decedent transferred or relinquished the right or interests; and, with respect to a power over property, means that the power terminated by exercise, release, lapse, in default, or otherwise, except that, with respect to a power described in subparagraph a of paragraph 1 of subdivision b of subsection 2, “termination” means that the power terminated by exercise or release, but not by lapse nor in default or otherwise.
2. The augmented estate consists of the sum of:
   1. The value of the decedent’s probate estate, reduced by funeral and administration expenses, homestead allowance as defined in section 47-18-01, family allowances, exempt property, and enforceable claims.
   2. The value of the decedent’s nonprobate transfers to others, which are composed of all property, whether movable or immovable, wherever situated, not included in the decedent’s probate estate, of any of the following types:
      1. Property of any of the following types that passed outside probate at the decedent’s death:
         1. Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment created by the decedent during the marriage; the amount included is the value of the property subject to the power, to the extent that the property passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse.
         2. The decedent’s fractional interest in property, held by the decedent in joint tenancy with the right of survivorship; the amount included is the value of the decedent’s fractional interest contributed by the decedent during the marriage, to the extent that that fractional interest passed by right of survivorship at the decedent’s death to a surviving joint tenant other than the decedent’s surviving spouse.
         3. The decedent’s ownership interest in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship; the amount included is the value of the decedent’s ownership interest, to the extent that the decedent’s ownership interest passed at the decedent’s death to or for the benefit of any person other than the decedent’s estate or surviving spouse.
      2. Property transferred in any of the following forms by the decedent during marriage:
         1. Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or the income from, the property if and to the extent that the decedent’s right terminated at or continued beyond the decedent’s death; the amount included is the value of the fraction of the property to which the decedent’s right related, to the extent that that fraction of the property passed outside probate to or for the benefit of any person other than the decedent’s estate or surviving spouse.
         2. Any transfer in which the decedent created a power over the income or principal of the transferred property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, for the benefit of the decedent, the decedent’s creditors, the decedent’s estate, or the creditors of the decedent’s estate; the amount included is the value of the property subject to the power, to the extent that the power was exercisable at the decedent’s death to or for the benefit of any person other than the decedent’s surviving spouse or to the extent that the property subject to the power passed at the decedent’s death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent’s estate or surviving spouse.
      3. Property that passed during marriage and during the two-year period next preceding the decedent’s death as a result of a transfer by the decedent if the transfer was of any of the following types:
         1. Any property that passed as a result of termination of a right or interest in, or power over, property that would have been included in the augmented estate under subparagraph a, b, or c of paragraph 1 of this subdivision, or under paragraph 2 of this subdivision, if the right, interest, or power had not terminated until the decedent’s death; the amount included is the value of the property that would have been included under these subsections, except that the property is valued at the time that the right, interest, or power terminated, and is included only to the extent that the property passed upon termination to or for the benefit of any person other than the decedent or the decedent’s estate, spouse, or surviving spouse.
         2. Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent’s surviving spouse, the amount included is the value of the transferred property to the extent that the aggregate transfers to any one donee in either of the two years exceeded ten thousand dollars.
   3. The value of the decedent’s nonprobate transfers to the decedent’s surviving spouse, which are composed of all property that passed outside probate at the decedent’s death from the decedent to the surviving spouse by reason of the decedent’s death, including:
      1. The decedent’s fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent’s fractional interest passed to the surviving spouse as surviving joint tenant;
      2. The decedent’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent’s ownership interest passed to the surviving spouse as surviving co-owner;
      3. Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if, and to the extent that, the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds, the amount included is the value of the proceeds, to the extent that they were payable at the decedent’s death; and
      4. All other property that would have been included in the augmented estate under paragraph 1 or 2 of subdivision b of this subsection had it passed to or for the benefit of a person other than the decedent’s spouse, surviving spouse, the decedent, or the decedent’s creditors, estate, or estate creditors, but excluding property passing to the surviving spouse under the federal social security system.
   4. Except to the extent included in the augmented estate under subdivision a or c, the value of property:
      1. That was owned by the decedent’s surviving spouse at the decedent’s death, including:
         1. The surviving spouse’s fractional interest in property held in joint tenancy with the right of survivorship;
         2. The surviving spouse’s ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and
         3. Property that passed to the surviving spouse by reason of the decedent’s death, but not including the spouse’s right to homestead allowance, family allowance, exempt property, or payments under the federal social security system.
      2. That would have been included in the surviving spouse’s nonprobate transfers to others, other than the spouse’s fractional and ownership interest included under subparagraphs a and b of paragraph 1, had the spouse been the decedent. Property included under this paragraph is valued at the decedent’s death, taking the fact that the decedent predeceased the spouse into account, except that, for purposes of subparagraphs a and b of paragraph 1, the values of the spouse’s fractional and ownership interests are determined immediately before the decedent’s death if the decedent was then a joint tenant or a co-owner of the property or accounts. The value of property included under this paragraph is reduced in each category by enforceable claims against the included property and is reduced by enforceable claims against the surviving spouse.
3. The value of any property is excluded from the decedent’s nonprobate transfers to others to the extent the decedent received adequate and full consideration in money or money’s worth for a transfer of the property or if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse. Life insurance, accident insurance, pension, profit-sharing, retirement, and other benefit plans payable to persons other than the decedent’s surviving spouse or the decedent’s estate are also excluded from the decedent’s nonprobate transfers.
4. The value of property includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal social security system.
5. In case of overlapping application to the same property of the paragraphs or subparagraphs of subsection 2, the property is included in the augmented estate under the provision yielding the highest value, but under any one, but only one, of the overlapping provisions if they all yield the same value.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, §§ 3, 4; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

30.1-05-03. (2-209) Sources from which elective share payable.

1. In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others:
   1. Amounts included in the augmented estate under subdivision a of subsection 2 of section 30.1-05-02 which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under subdivision c of subsection 2 of section 30.1-05-02; and
   2. Amounts included in the augmented estate under subdivision d of subsection 2 of section 30.1-05-02.
2. If, after the application of subsection 1, the elective-share amount is not fully satisfied or if the surviving spouse is entitled to a supplemental elective-share amount, amounts included in the decedent’s probate estate and in the decedent’s nonprobate transfers to others, other than amounts included under subparagraph a or b of paragraph 3 of subdivision b of subsection 2 of section 30.1-05-02, are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent’s probate estate and that portion of the decedent’s nonprobate transfers to others are so applied that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is equitably apportioned among the recipients of the decedent’s probate estate and of that portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.
3. If, after the application of subsections 1 and 2, the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent’s nonprobate transfers to others is so applied that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is equitably apportioned among the recipients of that remaining portion of the decedent’s nonprobate transfers to others in proportion to the value of their interests therein.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

30.1-05-04. (2-210) Personal liability of recipients.

1. Only original recipients of the decedent’s nonprobate transfers to others, and the donees of the recipients of the decedent’s nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse’s elective-share or supplemental elective-share amount. A person liable to make contribution may choose to give up the proportional part of the decedent’s nonprobate transfers to the person or to pay the value of the amount for which the person is liable.
2. If any section or part of any section of this chapter is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent’s nonprobate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit, is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of that payment or the value of that item of property or benefit, as provided in section 30.1-05-03, to the person who would have been entitled to it were that section or part of that section not preempted.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

Cross-References.

Divorce, annulment, or separation, effect of, see N.D.C.C. § 30.1-10-02.

Homestead exemption and allowance, see N.D.C.C. chs. 30-16 and 47-18.

30.1-05-05. (2-211) Proceeding for elective share — Time limit.

1. Except as provided in subsection 2, the election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent’s death, or within six months after the probate of the decedent’s will, whichever limitation later expires. The surviving spouse shall serve a copy of the petition for the elective share on, and shall give written notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests may be adversely affected by the taking of the elective share. Except as provided in subsection 2, the decedent’s nonprobate transfers to others, described in subdivision b of subsection 2 of section 30.1-05-02, is not included within the augmented estate for the purpose of computing the elective share, if the petition is filed more than nine months after the decedent’s death.
2. Within nine months after the decedent’s death, the surviving spouse may petition the court for an extension of time for making an election. If, within nine months after the decedent’s death, the spouse gives notice of the petition to all persons interested in the decedent’s nonprobate transfers to others, the court for cause shown by the surviving spouse may extend the time for election. If the court grants the spouse’s petition for an extension, the decedent’s nonprobate transfers to others, described in subdivision b of subsection 2 of section 30.1-05-02, are not excluded from the augmented estate for the purpose of computing the elective-share and supplemental elective-share amounts, if the spouse makes an election by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within the time allowed by the extension.
3. The surviving spouse may withdraw a demand for an elective share at any time before entry of a final determination by the court.
4. After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under sections 30.1-05-03 and 30.1-05-04. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than the person would have been under sections 30.1-05-03 and 30.1-05-04, had relief been secured against all persons subject to contribution.
5. An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.
6. A copy of the order or judgment of the court shall be forwarded immediately to the tax commissioner by the court.

Source: S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 3; 1977, ch. 295, § 5; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

30.1-05-06. (2-212) Right of election personal to surviving spouse — Incapacitated surviving spouse.

1. The right of election may be exercised only by a surviving spouse who is living when the petition for the elective share is filed in the court under subsection 1 of section 30.1-05-05. If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse’s behalf by the surviving spouse’s conservator, guardian, or agent under the authority of a power of attorney.
2. If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court shall set aside that portion of the elective-share and supplemental elective-share amounts due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others under subsections 2 and 3 of section 30.1-05-03 and shall appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee shall administer the trust in accordance with the following terms and any additional terms as the court determines appropriate:
   1. Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order but with regard to other support, income, and property of the surviving spouse exclusive of benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.
   2. During the surviving spouse’s incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.
   3. Upon the surviving spouse’s death, the trustee shall transfer the unexpended trust property in the following order: under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or to that predeceased spouse’s heirs under section 30.1-09.1-11.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 6; 1993, ch. 334, § 15; 1995, ch. 322, §§ 3, 27.

30.1-05-07. (2-213) Waiver of right to elect and of other rights. [Repealed]

Repealed by S.L. 2013, ch. 121, § 2.

Note.

See now, generally, N.D.C.C. ch. 14-03.2, Uniform Premarital and Marital Agreements Act.

30.1-05-08. (2-214) Protection of payers and other third parties.

1. Although under section 30.1-05-02 a payment, item of property, or other benefit is included in the decedent’s nonprobate transfers to others, a payer or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent’s death, before the payer or other third party received written notice from the surviving spouse or spouse’s representative of an intention to file a petition for the elective share or that a petition for the elective share has been filed. A payer or other third party is liable only for actions taken two or more business days after the payer or other third party received written notice of an intention to file a petition for the elective share or that a petition for the elective share has been filed. The written notice must indicate the name of the decedent, the date of the decedent’s death, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that the spouse intends to file a petition for the elective share or that a petition for the elective share has been filed. Any form of service of notice other than that described in subsection 2 is not sufficient to impose liability on a payer or other third party for actions taken pursuant to the governing instrument.
2. The written notice must be mailed to the payer’s or other third party’s main office or home by registered mail or served upon the payer or third party in the same manner as a summons in a civil action. Notice to a sales representative of the payer or other third party does not constitute notice to the payer or other third party. Upon receipt of written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The availability of an action under this section does not prevent the payer or other third party from taking any other action authorized by law or the governing instrument. If no probate proceedings have been commenced, the payer or other third party shall file with the court a copy of the written notice received by the payer or other third party, with the payment of funds or transfer or deposit of property. The court may not charge a filing fee to the payer or other third party for any such payment, transfer, or deposit with the court, even if no probate proceedings have been commenced before the payment, transfer, or deposit. The court shall hold the funds or items of property and, upon its determination under subsection 4 of section 30.1-05-05, shall order disbursement in accordance with the determination. If no petition is filed in the court within the specified time under subsection 1 of section 30.1-05-05, or, if filed, the demand for an elective share is withdrawn under subsection 3 of section 30.1-05-05, the court shall order disbursement to the designated beneficiary. A filing fee, if any, may be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. Payments, transfers, or deposits made to or with the court discharge the payer or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to or items of property transferred to or deposited with the court.
3. Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section.

Source: S.L. 1995, ch. 322, § 4.

30.1-06-01. (2-301) Entitlement of spouse — Premarital will.

1. If the testator’s surviving spouse married the testator after the testator executed a will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate the surviving spouse would have received if the testator had died intestate as to that portion of the testator’s estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is devised to a descendant of such a child or passes under section 30.1-09-05 or 30.1-09-06 to such a child or to a descendant of such a child, unless:
   1. It appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse;
   2. The will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or
   3. The testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
2. In satisfying the share provided by this section, devises made by the will to the testator’s surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under section 30.1-09-05 or 30.1-09-06 to a descendant of such a child, abate as provided in section 30.1-20-02.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 16; 1995, ch. 322, §§ 5, 27.

30.1-06-02. (2-302) Omitted children.

1. Except as provided in subsection 2, if a testator fails to provide in the will for any of the testator’s children born or adopted after the execution of the will, the omitted afterborn or after-adopted child receives a share in the estate as follows:
   1. If the testator had no child living when the testator executed the will, an omitted afterborn or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.
   2. If the testator had one or more children living when the testator executed the will, and the will devised property or an interest in property to one or more of the then-living children, an omitted afterborn or after-adopted child is entitled to share in the testator’s estate as follows:
      1. The portion of the testator’s estate in which the omitted afterborn or after-adopted child is entitled to share is limited to devises made to the testator’s then-living children under the will.
      2. The omitted afterborn or after-adopted child is entitled to receive the share of the testator’s estate, as limited in paragraph 1, that the child would have received had the testator included all omitted afterborn and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.
      3. To the extent feasible, the interest granted an omitted afterborn or after-adopted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator’s then-living children under the will.
      4. In satisfying a share provided by this subdivision, devises to the testator’s children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.
2. Neither subdivision a nor subdivision b of subsection 1 applies if:
   1. It appears from the will that the omission was intentional; or
   2. The testator provided for the omitted afterborn or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.
3. If at the time of execution of the will the testator fails to provide in the will for a living child solely because the testator believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted afterborn or after-adopted child.
4. In satisfying a share provided by subdivision a of subsection 1 or subsection 3, devises made by the will abate under section 30.1-20-02.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 16; 1995, ch. 322, §§ 6, 27.

30.1-07-00.1. (2-401) Applicable law.

This chapter applies to the estate of a decedent who dies domiciled in this state. The rights to homestead allowance, exempt property, and family allowance for a decedent who dies not domiciled in this state are governed by the law of the decedent’s domicile at death.

Source: S.L. 1993, ch. 334, § 17; 1995, ch. 322, § 27.

30.1-07-01. (2-403) Exempt property.

In addition to the homestead defined in section 47-18-01, the decedent’s surviving spouse is entitled from the estate to a value, not exceeding fifteen thousand dollars in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the decedent’s minor children, whom the decedent was obligated to support and children who were in fact being supported by the decedent, are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than fifteen thousand dollars, or if there is not fifteen thousand dollars worth of exempt property in the estate, the spouse or such children are entitled to other assets of the estate, if any, to the extent necessary to make up the fifteen thousand dollar value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of the homestead allowance and family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by the decedent’s will, unless otherwise provided, by intestate succession, or by way of elective share.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 18; 1995, ch. 322, § 27; 2009, ch. 283, § 16.

Cross-References.

Divorce, annulment, or separation, effect of, see N.D.C.C. § 30.1-10-02.

Waiver of rights by surviving spouse, see N.D.C.C. § 30.1-05-07.

30.1-07-02. (2-404) Family allowance.

1. In addition to the right to homestead allowance and exempt property, the decedent’s surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody. If a minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or the child’s guardian or other person having the child’s care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims except the homestead allowance.
2. The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession or by way of elective share. The death of any person entitled to family allowance terminates the right to allowances not yet paid.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 19; 1995, ch. 322, § 27.

Cross-References.

Wages paid by employer to surviving spouse, see N.D.C.C. § 34-01-12.

Waiver of rights by surviving spouse, see N.D.C.C. § 30.1-05-07.

30.1-07-03. (2-405) Source, determination, and documentation.

1. If the estate is otherwise sufficient, property specifically devised may not be used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, guardians of minor children, or children who are adults may select property of the estate as exempt property. The personal representative may make those selections if the surviving spouse, the children, or the guardians of the minor children are unable or fail to do so within a reasonable time, or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property. The personal representative may determine the family allowance in a lump sum not exceeding twenty-seven thousand dollars or periodic installments not exceeding two thousand two hundred fifty dollars per month for one year and may disburse funds of the estate in payment of the family allowance. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may include a family allowance other than that which the personal representative determined or could have determined.
2. If the right to an elective share is exercised on behalf of a surviving spouse who is an incapacitated person, the personal representative may add any unexpended portions payable under the homestead allowance, exempt property, and family allowance to the trust established under subsection 2 of section 30.1-05-06.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 20; 1995, ch. 322, §§ 7, 27; 2009, ch. 283, § 17.

30.1-08-01. (2-501) Who may make a will.

Any adult who is of sound mind may make a will.

Source: S.L. 1973, ch. 257, § 1.

30.1-08-02. (2-502) Execution — Witnessed wills — Holographic wills.

1. Except as provided in subsection 2 and in sections 30.1-08-06 and 30.1-08-13, a will must be:
   1. In writing.
   2. Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.
   3. Either signed:
      1. By at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will as described in subdivision b or the testator’s acknowledgment of that signature or acknowledgment of the will; or
      2. Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.
2. A will that does not comply with subsection 1 is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.
3. Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 21; 1995, ch. 322, § 27; 2009, ch. 283, § 18.

30.1-08-03. Holographic will. [Repealed]

Repealed by S.L. 1993, ch. 334, § 50.

30.1-08-04. (2-504) Self-proved will.

1. A will that is executed with attesting witnesses may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer’s certificate, under official seal, attached or annexed to the will in substantially the following form:
2. A will that is executed with attesting witnesses may at any time after its execution be made self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer’s certificate, under the official seal, attached or annexed to the will in substantially the following form:
3. A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the will’s due execution.

STATE OF COUNTY OF I, , the testator, sign my name to this instrument this day of , , and being first sworn, declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly or willingly direct another to sign for me, that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence. Testator We, , , the witnesses, sign our names to this instrument, and being first sworn, declare to the undersigned authority that the testator signs and executes this instrument as the testator’s will and that the testator signs it willingly or willingly directs another to sign for the testator, and that each of us, in the presence and hearing of the testator, signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence. Witness Witness Subscribed, sworn to, and acknowledged before me by , the testator, and subscribed and sworn to before me by and , witnesses, this day of . (Signed) (SEAL) (Official capacity of officer)

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STATE OF COUNTY OF We, , , and , the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator’s will and that the testator had signed willingly or willingly directed another to sign for the testator, and that the testator executed it as the testator’s free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of our knowledge the testator was at that time 18 years of age or older, of sound mind, and under no constraint or undue influence. Testator Witness Witness Subscribed, sworn to, and acknowledged before me by , the testator, and subscribed and sworn to before me by and , witnesses, this day of , . (Signed) (SEAL) (Official capacity of officer)

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Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 8; 1993, ch. 334, § 22; 1995, ch. 322, § 27; 2009, ch. 283, § 19.

30.1-08-05. (2-505) Who may witness.

1. Any person generally competent to be a witness may act as a witness to a will.
2. A will or any provision thereof is not invalid because the will is signed by an interested witness.

Source: S.L. 1973, ch. 257, § 1.

30.1-08-06. (2-506) Choice of law as to execution.

A written will is valid if executed in compliance with section 30.1-08-02 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 23; 1995, ch. 322, § 27.

30.1-08-07. (2-507) Revocation by writing or by act.

1. A will or any part thereof is revoked:
   1. By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
   2. By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subdivision, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a “revocatory act on the will”, whether or not the burn, tear, or cancellation touched any of the words on the will.
2. If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
3. The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator’s death.
4. The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator’s death to the extent they are not inconsistent.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 24; 1995, ch. 322, § 27.

30.1-08-08. (2-508) Revocation by change of circumstances.

Except as provided in sections 30.1-10-03 and 30.1-10-04, a change of circumstances does not revoke a will or any part of it.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 25; 1995, ch. 322, § 27.

30.1-08-09. (2-509) Revival of revoked will.

1. If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under subdivision b of subsection 1 of section 30.1-08-07, the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
2. If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under subdivision b of subsection 1 of section 30.1-08-07, a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
3. If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later, will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 26; 1995, ch. 322, § 27.

Collateral References.

Codicil as reviving revoked will or codicil, 33 A.L.R.2d 922.

30.1-08-10. (2-510) Incorporation by reference.

Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Extrinsic document not in existence at date of will, incorporation in will of, 3 A.L.R.2d 682.

“Pour-over” provisions from will to inter vivos trust, 12 A.L.R.3d 56.

30.1-08-11. (2-511) Testamentary additions to trusts.

1. A will may validly devise property to the trustee of a trust established or to be established during the testator’s lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts, or at the testator’s death by the testator’s devise to the trustee, if the trust is identified in the testator’s will and its terms are set forth in a written instrument, other than a will, executed before, or concurrently with, or after the execution of the testator’s will or in another individual’s will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator’s death.
2. Unless the testator’s will provides otherwise, property devised to a trust described in subsection 1:
   1. Is not held under a testamentary trust of the testator but becomes a part of the trust to which it is devised.
   2. Must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator’s death.
3. Unless the testator’s will provides otherwise, a revocation or termination of the trust before the testator’s death causes the devise to lapse.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 27; 1995, ch. 322, § 27.

Collateral References.

“Pour-over” provisions from will to inter vivos trust, 12 A.L.R.3d 56.

Comparative Legislation.

Jurisdictions which have enacted the Uniform Testamentary Additions to Trusts Act include:

Alaska Stat. § 13.11.200.

Ariz. Rev. Stat. Ann. § 14-2511.

Ark. Stat. Ann. §§ 28-27-101 to 28-27-105.

Cal. Prob. Code §§ 6300 to 6303.

Colo. Rev. Stat. § 15-11-511.

Conn. Gen. Stat. § 45a-260.

Del. Code Ann. tit. 12, § 211.

D.C. Code Ann. § 18-306.

Fla. Stat. § 732.513.

Ga. Code §§ 53-12-70 to 53-12-74.

Guam Civ. Code tit. 15, §§ 701 to 707.

Hawaii Rev. Stat. § 560:2-511.

Idaho Code § 15-2-511.

Ill. 775 ILCS -4.

Ind. Code § 29-1-5-9.

Iowa Code §§ 633.275 to 633.277.

Kan. Stat. Ann. §§ 59-3101 to 59-3105.

Ky. Rev. Stat. § 394.075.

Me. Rev. Stat. Ann. tit. 18-A, § 2-511.

Md. Est. & Trusts Code Ann. §§ 4-411, 4-412.

Mass. Gen. Laws Ann. ch. 203, § 3B.

Mich. Comp. Laws §§ 555.461 to 555.464.

Minn. Stat. § 525.223.

Miss. Code Ann. § 91-5-11.

Mont. Code Ann. § 72-2-531.

Neb. Rev. Stat. § 30-2336.

Nev. Rev. Stat. §§ 163.220 to 163.250.

N.H. Rev. Stat. Ann. §§ 563-A:1 to 563-A:4.

N.J. Rev. Stat. §§ 3B:4-1 to 3B:4-6.

N.M. Stat. Ann. § 45-2-511.

N.Y. Est. Powers & Trusts Law § 3-3.7.

N.C. Gen. Stat. § 31-47.

Ohio Rev. Code Ann. § 2107.63.

Okla. Stat. tit. 84, §§ 301 to 304.

Or. Rev. Stat. § 112.265.

Pa. Stat. Ann. tit. 20, § 2515.

S.C. Code Ann. § 62-2-510.

S.D. Cod. Laws §§ 29-2-18 to 29-2-23.

Tenn. Code Ann. § 32-3-106.

Tex. Probate Code Ann. § 58a.

Utah Code Ann. § 75-2-511.

Vt. Stat. Ann. tit. 14, § 2329.

Wash. Rev. Code § 11.12.250.

W. Va. Code §§ 41-3-8 to 41-3-11.

Wyo. Stat. § 2-6-103.

30.1-08-12. (2-512) Events of independent significance.

A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will of another person is such an event.

Source: S.L. 1973, ch. 257, § 1.

30.1-08-13. (2-513) Separate writing identifying devise of certain types of tangible personal property.

Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s death, it may be prepared before or after the execution of the will, it may be altered by the testator after its preparation, and it may be a writing that has no significance apart from its effect on the dispositions made by the will.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 28; 1995, ch. 322, § 27.

30.1-08.1-01. Declaratory judgment.

Any person who executes a will disposing of the person’s estate in accordance with this title may institute a proceeding under chapter 32-23 for a judgment declaring the validity of the will as to the signature on the will, the required number of witnesses to the signature and their signatures, and the testamentary capacity and freedom from undue influence of the person executing the will.

Source: S.L. 1977, ch. 296, § 2.

30.1-08.1-02. Parties — Process.

Any beneficiary named in the will and all the testator’s present intestate successors shall be named parties to the proceeding. For the purposes of this chapter, any beneficiary named in the will and all the testator’s present intestate successors shall be deemed possessed of inchoate property rights.

Service of process upon the parties to the proceeding shall be made in accordance with rule 4 of the North Dakota Rules of Civil Procedure.

Source: S.L. 1977, ch. 296, § 3.

30.1-08.1-03. Finding of validity — Revocation.

If the court finds under chapter 32-23 that the will has been properly executed and that the plaintiff testator has the requisite testamentary capacity and freedom from undue influence, it shall declare the will valid and order it placed on file with the court. For the purposes of section 30.1-12-02, a finding of validity under this chapter shall constitute an adjudication of probate. The will shall be binding in North Dakota unless and until the plaintiff-testator executes a new will and institutes a new proceeding under this chapter naming the appropriate parties to the new proceeding as well as the parties to any former proceeding brought under this chapter.

Source: S.L. 1977, ch 296, § 4.

Collateral References.

Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage, 38 A.L.R.4th 117.

30.1-08.1-04. Admissibility of facts — Effect on other actions.

The facts found in a proceeding brought under this chapter shall not be admissible in evidence in any proceeding other than one brought in North Dakota to determine the validity of a will; nor shall the determination in a proceeding under this chapter be binding, upon the parties to such proceeding, in any action not brought to determine the validity of a will.

Source: S.L. 1977, ch. 296, § 5.

30.1-08.2-01. (2-1001) Definitions.

In this chapter:

1. “Authorized person” and “person authorized to act in connection with international wills” mean a person who by section 30.1-08.2-08, or by the laws of the United States, including members of the diplomatic and consular service of the United States designated by foreign service regulations, is empowered to supervise the execution of international wills.
2. “International will” means a will executed in conformity with sections 30.1-08.2-02 through 30.1-08.2-05.

Source: S.L. 1979, ch. 376, § 1.

Comparative Legislation.

For jurisdictions which have enacted the Uniform Probate Code, including the Uniform International Wills Act, see the Comparative Legislation Note appearing under § 30.1-01-01, supra.

Jurisdictions enacting the Uniform International Wills Act, without adopting the Uniform Probate Code, include:

Cal. Prob. Code §§ 6380 to 6390.

Conn. §§ 50a-1 to 50a-9.

Ill. 755 ILCS 10/1 to 755 ILCS 10/10.

Or. Rev. Stat. § 112.232.

30.1-08.2-02. (2-1002) International will — Validity.

1. A will is valid in form, irrespective of the place where it is made, of the location of the assets and of the nationality, domicile, or residence of the testator, if it is made in the form of an international will complying with the requirements of this chapter.
2. The invalidity of the will as an international will does not affect its formal validity as a will of another kind.
3. This chapter does not apply to the form of testamentary dispositions made by two or more persons in one instrument.

Source: S.L. 1979, ch. 376, § 2.

30.1-08.2-03. (2-1003) International will — Requirements.

1. The will must be made in writing. It need not be written by the testator personally. It may be written in any language, by hand or by any other means.
2. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is the testator’s will and that the testator knows the contents thereof. The testator need not inform the witnesses, or the authorized person, of the contents of the will.
3. In the presence of the witnesses, and of the authorized person, the testator shall sign the will or, if the testator has previously signed it, shall acknowledge that signature.
4. If the testator is unable to sign, the absence of the testator’s signature does not affect the validity of the international will if the testator indicates the reason for the testator’s inability to sign and the authorized person makes note thereof on the will. In that case, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator, to sign the testator’s name if the authorized person makes note of this on the will, but it is not required that any person sign the testator’s name for the testator.
5. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

Source: S.L. 1979, ch. 376, § 3.

30.1-08.2-04. (2-1004) International wills — Other points of form.

1. The signatures must be placed at the end of the will. If the will consists of several sheets, each sheet must be signed by the testator or, if the testator is unable to sign, by the person signing on the testator’s behalf or, if there is no such person, by the authorized person. In addition, each sheet must be numbered.
2. The date of the will must be the date of its signature by the authorized person. That date must be noted at the end of the will by the authorized person.
3. The authorized person shall ask whether the testator wishes to make a declaration concerning the safekeeping of the testator’s will. If so and at the express request of the testator, the place where the testator intends to have the testator’s will kept must be mentioned in the certificate provided for in section 30.1-08.2-05.
4. A will executed in compliance with section 30.1-08.2-03 is not invalid merely because it does not comply with this section.

Source: S.L. 1979, ch. 376, § 4.

30.1-08.2-05. (2-1005) International will — Certificate.

The authorized person shall attach to the will a certificate to be signed by the authorized person establishing that the requirements of this chapter for valid execution of an international will have been fulfilled. The authorized person shall keep a copy of the certificate and deliver another to the testator. The certificate must be substantially in the following form:

CERTIFICATE I, (name, address, and capacity), a person authorized to act in connection with international wills, certify that on (date) at (place) (name, address, date and place of birth of testator) in my presence and that of the witnesses (name, address, date and place of birth of first witness) and (name, address, date and place of birth of second witness) has declared that the attached document is the testator’s will and that the testator knows the contents thereof. I further certify that in my presence and in that of the witnesses the testator has signed the will or has acknowledged the testator’s signature previously affixed or that following a declaration of the testator stating that the testator was unable to sign the will for the following reason , I have mentioned this declaration on the will, and the signature has been affixed by (name and address). I further certify that the witnesses and I have signed the will; each page of the will has been signed by and numbered [to be completed if appropriate]; I have satisfied myself as to the identity of the testator and of the witnesses as designated above; the witnesses met the conditions requisite to act as such according to the law under which I am acting; the testator has requested me to include the following statement concerning the safekeeping of the testator’s will [to be completed if appropriate]: . (Place of execution) (Date) (Signature)

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Source: S.L. 1979, ch. 376, § 5.

30.1-08.2-06. (2-1006) International will — Effect of certificate.

In the absence of evidence to the contrary, the certificate of the authorized person is conclusive of the formal validity of the instrument as a will under this chapter. The absence or irregularity of a certificate does not affect the formal validity of a will under this chapter.

Source: S.L. 1979, ch. 376, § 6.

30.1-08.2-07. (2-1007) International will — Revocation.

An international will is subject to the ordinary rules of revocation of wills.

Source: S.L. 1979, ch. 376, § 7.

30.1-08.2-08. (2-1009) Persons authorized to act in relation to international will — Eligibility — Recognition by authorizing agency.

Individuals who have been admitted to practice law before the courts of this state and are currently licensed so to do are authorized persons in relation to international wills.

Source: S.L. 1979, ch. 376, § 8.

30.1-08.2-09. (2-1010) International will information registration.

The secretary of state shall establish a registry system by which authorized persons may register in a central information center, information regarding the execution of international wills, keeping that information in strictest confidence until the death of the maker and then making it available to any person desiring information about any will who presents a death certificate or other satisfactory evidence of the testator’s death to the center. Information that may be received, preserved in confidence until death, and reported as indicated is limited to the name, social security or any other individual identifying number established by law, address, and date and place of birth of the testator, and the intended place of deposit or safekeeping of the instrument pending the death of the maker. The secretary of state, at the request of the authorized person, may cause the information it receives about execution of any international will to be transmitted to the registry system of another jurisdiction as identified by the testator, if that other system adheres to rules protecting the confidentiality of the information similar to those established in this state.

Source: S.L. 1979, ch. 376, § 9.

30.1-09-01. Requirement that devisee survive testator by one hundred twenty hours. [Repealed]

Repealed by S.L. 1993, ch. 334, § 50.

30.1-09-02. Choice of law as to meaning and effect of wills. [Repealed]

Repealed by S.L. 1993, ch. 334, § 50.

30.1-09-03. (2-601) Rules of construction and intention applicable only to wills.

The intention of a testator as expressed in the testator’s will controls the legal effect of the testator’s dispositions. The rules of construction expressed in this chapter apply unless a contrary intention is indicated by the will.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 29; 1995, ch. 322, § 27.

30.1-09-04. (2-602) Will passes all property — After-acquired property.

A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator’s death.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 30; 1995, ch. 322, § 27.

30.1-09-05. (2-603) Antilapse — Deceased devisee — Class gifts.

If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if the devisee predeceased the testator, the issue of the deceased devisee who survive the testator by one hundred twenty hours take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree, then those of more remote degree take by representation. One who would have been a devisee under a class gift if that person had survived the testator is treated as a devisee for purposes of this section where that person’s death occurred before or after the execution of the will.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 31; 1995, ch. 322, §§ 8, 27.

30.1-09-06. (2-604) Failure of testamentary provision.

1. Except as provided in section 30.1-09-05, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue.
2. Except as provided in section 30.1-09-05, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interests of each in the remaining part of the residue.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 32; 1995, ch. 322, § 27.

30.1-09-07. (2-605) Change in securities — Accessions — Nonademption.

1. If a testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
   1. As much of the devised securities as is a part of the estate at the time of the testator’s death.
   2. Any additional or other securities of the same entity owned by the testator by reason of action initiated by the entity excluding any acquired by exercise of purchase options.
   3. Securities of another entity owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity.
   4. Any additional securities of the entity owned by the testator as a result of a plan of reinvestment.
2. Distributions before death with respect to a specifically devised security not provided for in subsection 1 are not part of the specific devise.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 2; 1993, ch. 334, § 33; 1995, ch. 322, §§ 9, 27.

Collateral References.

Ademption of specific legacy of corporate stock or other corporate securities, what amounts to, 61 A.L.R.2d 449.

Dividends or interest accruing between testator’s death and payment of legacy, bequest of bank deposits, stocks, bonds, notes, or other securities as carrying, 15 A.L.R.3d 1038.

Admissibility of extrinsic evidence to identify stock, bonds, or other securities disposed of by will, 16 A.L.R.3d 432.

Change in stock or corporate structure, or split or substitution of stock of corporation, as affecting bequest of stock, 46 A.L.R.3d 7.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

30.1-09-08. (2-606) Nonademption of specific devises — Unpaid proceeds of sale, condemnation, or insurance — Sale by conservator.

1. A specific devisee has the right to specifically devised property in the testator’s estate at the testator’s death and to:
   1. Any balance of the purchase price, together with any security interest, owed by a purchaser at the testator’s death by reason of sale of the property by the testator.
   2. Any amount of a condemnation award for the taking of the property unpaid at death.
   3. Any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property.
   4. Any property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation.
2. If specifically devised property is sold, mortgaged, or otherwise encumbered by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated person, or a condemnation award, insurance proceeds, or recovery for injury to the property is paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated person, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery. This subsection does not apply if after the sale, encumbrance, condemnation, casualty, or recovery, it was adjudicated that the testator’s incapacity ceased and the testator survived the adjudication by at least one year. The right of a specific devisee under this subsection is reduced by any right the devisee has under subsection 1.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 9; 1989, ch. 401, § 3; 1993, ch. 334, § 34; 1995, ch. 322, §§ 10, 27; 1999, ch. 294, § 2.

30.1-09-09. (2-607) Nonexoneration.

A specific devise passes subject to any security interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 35; 1995, ch. 322, § 27.

30.1-09-10. (2-608) Exercise of power of appointment.

A general residuary clause in a will, or a will making general disposition of all of the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 36; 1995, ch. 322, §§ 11, 27.

30.1-09-11. Construction of generic terms to accord with relationships as defined for intestate succession. [Repealed]

Repealed by S.L. 1993, ch. 334, § 50.

30.1-09-12. (2-609) Ademption by satisfaction.

1. Property a testator gave in the testator’s lifetime to a person is treated as a satisfaction of a devise in whole or in part, only if the will provides for deduction of the gift, the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise, or the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise.
2. For the purposes of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or at the testator’s death, whichever occurs first.
3. If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying sections 30.1-09-05 and 30.1-09-06, unless the testator’s contemporaneous writing provides otherwise.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 37; 1995, ch. 322, § 27.

Collateral References.

Satisfaction or ademption of general legacy by inter vivos gift, transfer, or payment to the legatee or another, 26 A.L.R.2d 9.

Presumption and burden of proof with respect to advancement, 31 A.L.R.2d 1036.

Conclusiveness of testator’s statement as to amount of debt or advancement to be charged against legacy or devise, 98 A.L.R.2d 273.

Conveyance or surrender of property as an accord and satisfaction of contract obligation, 59 A.L.R.5th 665.

30.1-09-13. (2-514) Contracts concerning succession.

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after July 1, 1975, can be established only by:

1. Provisions of a will stating material provisions of the contract;
2. An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
3. A writing signed by the decedent evidencing the contract.

The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 38; 1995, ch. 322, § 27.

30.1-09.1-01. (2-701) Scope.

In the absence of a finding of a contrary intention, the rules of construction in this chapter control the construction of a governing instrument. The rules of construction in this chapter apply to a governing instrument of any type, except as the application of a particular section is limited by its terms to a specific type or types of provisions or governing instrument.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

30.1-09.1-02. (2-702) Requirement of survival by one hundred twenty hours.

1. For the purposes of this title, except as provided in subsection 4, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by one hundred twenty hours is deemed to have predeceased the event.
2. Except as provided in subsection 4, for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by one hundred twenty hours is deemed to have predeceased the event.
3. Except as provided in subsection 4, if it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by one hundred twenty hours, one-half of the property passes as if one had survived by one hundred twenty hours and one-half as if the other had survived by one hundred twenty hours and there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by one hundred twenty hours, the property passes in the proportion that one bears to the whole number of co-owners. For purposes of this subsection, the term “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of the other or others.
4. Survival by one hundred twenty hours is not required if:
   1. The governing instrument contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
   2. The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specific period or expressly requires the individual to survive the event by a specific period, but survival of the event or the specified period must be established by clear and convincing evidence;
   3. Imposition of a one-hundred-twenty-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under subdivision a of subsection 1, subdivision a of subsection 2, or subdivision a of subsection 3 of section 47-02-27.1, or to become invalid under subdivision b of subsection 1, subdivision b of subsection 2, or subdivision b of subsection 3 of section 47-02-27.1, but survival must be established by clear and convincing evidence; or
   4. The application of a one-hundred-twenty-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition, but survival must be established by clear and convincing evidence.
5. 1. A payer or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in good-faith reliance on the beneficiary’s apparent entitlement under the terms of the governing instrument, before the payer or other third party received written notice of a claimed lack of entitlement under this section. A payer or other third party is liable for a payment made or other action taken after the payer or other third party received written notice of a claimed lack of entitlement under this section.
   2. Written notice of a claimed lack of entitlement under subdivision a must be mailed to the payer’s or other third party’s main office or home by registered mail or served upon the payer or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this section, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payer or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
6. 1. A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
   2. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, §§ 12, 27.

30.1-09.1-03. (2-703) Choice of law as to meaning and effect of governing instrument.

The meaning and legal effect of a governing instrument is determined by the local law of the state selected by the transferor in the governing instrument, unless the application of that law is contrary to the provisions relating to the elective share described in chapter 30.1-05, the provisions relating to exempt property and allowances described in chapter 30.1-07, or any other public policy of this state otherwise applicable to the disposition.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

Cross-References.

Choice of law as to execution, see N.D.C.C. § 30.1-08-06.

30.1-09.1-04. (2-704) Power of appointment — Meaning of specific reference requirement.

If a governing instrument creating a power of appointment expressly requires that the power be exercised by a reference, an express reference, or a specific reference, to the power or its source, it is presumed that the donor’s intention, in requiring that the donee exercise the power by making reference to the particular power or to the creating instrument, was to prevent an inadvertent exercise of the power.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

30.1-09.1-05. (2-705) Class gifts construed to accord with intestate succession — Exceptions.

1. In this section:
   1. “Adoptee” has the meaning set forth in section 30.1-04-14.
   2. “Child of assisted reproduction” has the meaning set forth in section 30.1-04-19.
   3. “Distribution date” means the time when an immediate or a postponed class gift is to take effect in possession or enjoyment.
   4. “Functioned as a parent of the adoptee” has the meaning set forth in section 30.1-04-14, substituting “adoptee” for “child” in that definition.
   5. “Functioned as a parent of the child” has the meaning set forth in section 30.1-04-14.
   6. “Genetic parent” has the meaning set forth in section 30.1-04-14.
   7. “Gestational child” has the meaning set forth in section 30.1-04-20.
   8. “Relative” has the meaning set forth in section 30.1-04-14.
2. A child of assisted reproduction, a gestational child, and except as otherwise provided in subsections 3 and 4, an adoptee and a child born to parents not married to each other, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession. Terms of relationship in a governing instrument which do not differentiate relationships by the half blood from those by the whole blood, such as brothers, sisters, nieces, or nephews, are construed to include both types of relationships. Terms of relationship in a governing instrument that do not differentiate relationships by blood from those by marriage, such as uncles, aunts, nieces, or nephews, are construed to exclude relatives by marriage unless:
   1. When the governing instrument was executed, the class was then and foreseeably would be empty; or
   2. The language or circumstances otherwise establish that relatives by marriage were intended to be included.
3. In construing a dispositive provision of a transferor who is not the genetic parent, a child of a genetic parent is not considered the child of that parent unless the parent, a relative of the genetic parent, or the spouse or surviving spouse of a relative of the genetic parent functioned as a parent of the child before the child reached eighteen years of age.
4. In construing a dispositive provision of a transferor who is not the adoptive parent, an adoptee is not considered the child of the adoptive parent unless:
   1. The adoption took place before the adoptee reached eighteen years of age;
   2. The adoptive parent was the adoptee’s stepparent or foster parent; or
   3. The adoptive parent functioned as a parent of the adoptee before the adoptee reached eighteen years of age.
5. The following rules apply for purposes of the class-closing rules:
   1. A child in utero at a particular time is treated as living at that time if the child lives one hundred twenty hours after birth.
   2. If a child of assisted reproduction or a gestational child is conceived posthumously and the distribution date is the deceased parent’s death, the child is treated as living on the distribution date if the child lives one hundred twenty hours after birth and was in utero not later than thirty-six months after the deceased parent’s death or born not later than forty-five months after the deceased parent’s death.
   3. An individual who is in the process of being adopted when the class closes is treated as adopted when the class closes if the adoption is subsequently granted.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27; 2009, ch. 283, § 20.

30.1-09.1-06. (2-706) Life insurance — Retirement plan — Account with payable on death designation — Transfer-on-death registration — Deceased beneficiary.

1. In this section:
   1. “Alternative beneficiary designation” means a beneficiary designation that is expressly created by the governing instrument and, under the terms of the governing instrument, can take effect instead of another beneficiary designation on the happening of one or more events, including survival of the decedent or failure to survive the decedent, whether an event is expressed in condition-precedent, condition-subsequent, or any other form.
   2. “Beneficiary” means the beneficiary of a beneficiary designation under which the beneficiary must survive the decedent and includes a class member if the beneficiary designation is in the form of a class gift and includes an individual or class member who was deceased at the time the beneficiary designation was executed as well as an individual or class member who was then living but who failed to survive the decedent, but excludes a joint tenant of a joint tenancy with the right of survivorship and a party to a joint and survivorship account.
   3. “Beneficiary designation” includes an alternative beneficiary designation and a beneficiary designation in the form of a class gift.
   4. “Class member” includes an individual who fails to survive the decedent but who would have taken under a beneficiary designation in the form of a class gift had the individual survived the decedent.
   5. “Descendant of a grandparent”, as used in subsection 2, means an individual who qualifies as a descendant of a grandparent of the decedent under the rules of construction applicable to a class gift created in the decedent’s beneficiary designation if the beneficiary designation is in the form of a class gift or rules for intestate succession if the beneficiary designation is not in the form of a class gift.
   6. “Descendants”, as used in the phrase “surviving descendants” of a deceased beneficiary or class member in subdivisions a and b of subsection 2, mean the descendants of a deceased beneficiary or class member who would take under a class gift created in the beneficiary designation.
   7. “Stepchild” means a child of the decedent’s surviving, deceased, or former spouse, and not of the decedent.
   8. “Surviving” in the phrase “surviving beneficiary” or “surviving descendant” means a beneficiary or a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under section 30.1-09.1-02.
2. If a beneficiary fails to survive the decedent and is a grandparent, a descendant of a grandparent, or a stepchild of the decedent, the following apply:
   1. Except as provided in subdivision d, if the beneficiary designation is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants. They take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the decedent.
   2. Except as provided in subdivision d, if the beneficiary designation is in the form of a class gift, other than a beneficiary designation to “issue”, “descendants”, “heirs of the body”, “heirs”, “next of kin”, “relatives”, “family”, or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the decedent passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which the surviving beneficiary would have been entitled had the deceased beneficiaries survived the decedent. Each deceased beneficiary’s surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the decedent. For the purposes of this subdivision, “deceased beneficiary” means a class member who failed to survive the decedent and left one or more surviving descendants.
   3. For purposes of section 30.1-09.1-01, words of survivorship, such as in a beneficiary designation to an individual “if the individual survives me”, or in a beneficiary designation to “my surviving children”, are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section.
   4. If a governing instrument creates an alternative beneficiary designation with respect to a beneficiary designation for which a substitute gift is created by subdivision a or b, the substitute gift is superseded by the alternative beneficiary designation if:
      1. The alternative beneficiary designation is in the form of a class gift and one or more members of the class is entitled to take; or
      2. The alternative beneficiary designation is not in the form of a class gift and the expressly designated beneficiary of the alternative beneficiary designation is entitled to take.
3. If, under subsection 2, substitute gifts are created and not superseded with respect to more than one beneficiary designation, and the beneficiary designations are alternative beneficiary designations, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:
   1. Except as provided in subdivision b, the property passes under the primary substitute gift.
   2. If there is a younger-generation beneficiary designation, the property passes under the younger-generation substitute gift and not under the primary substitute gift.
   3. In this subsection:
      1. “Primary beneficiary designation” means the beneficiary designation that would have taken effect had all the deceased beneficiaries of the alternative beneficiary designations who left surviving descendants survived the decedent.
      2. “Primary substitute gift” means the substitute gift created with respect to the primary beneficiary designation.
      3. “Younger-generation beneficiary designation” means a beneficiary designation that is to a descendant of a beneficiary of the primary beneficiary designation, is an alternative beneficiary designation with respect to the primary beneficiary designation, is a beneficiary designation for which a substitute gift is created, and would have taken effect had all the deceased beneficiaries who left surviving descendants survived the decedent except the deceased beneficiary or beneficiaries of the primary beneficiary designation.
      4. “Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation beneficiary designation.
4. 1. A payer is protected from liability in making payments under the terms of the beneficiary designation until the payer has received written notice of a claim to a substitute gift under this section. Payment made before the receipt of written notice of a claim to a substitute gift under this section discharges the payer, but not the recipient, from all claims for the amounts paid. A payer is liable for a payment made after the payer has received written notice of the claim. A recipient is liable for a payment received, whether or not written notice of the claim is given.
   2. The written notice of the claim must be mailed to the payer’s main office or home by registered mail, return receipt requested, or served upon the payer in the same manner as a summons in a civil action. Upon receipt of written notice of the claim, a payer may pay any amount owed by it to the court having jurisdiction of the probate proceedings relating to the decedent’s estate or, if no proceedings have been commenced, to the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The court shall hold the funds and, upon its determination under this section, shall order disbursement in accordance with the determination. Payment made to the court discharges the payer from all claims for the amounts paid.
5. 1. A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item or property or benefit, to the person who is entitled to it under this section.
   2. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, §§ 13, 14, 27; 2009, ch. 283, § 21.

30.1-09.1-07. (2-707) Survivorship with respect to future interests under the terms of a trust — Substitute takers.

1. In this section:
   1. “Alternative future interest” means to an expressly created future interest that can take effect in possession or enjoyment instead of another future interest on the happening of one or more events, including survival of an event or failure to survive an event, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause in a will does not create an alternative future interest with respect to a future interest created in a nonresiduary devise in the will, whether or not the will specifically provides that lapsed or failed devises are to pass under the residuary clause.
   2. “Beneficiary” means the beneficiary of a future interest and includes a class member if the future interest is in the form of a class gift.
   3. “Class member” includes an individual who fails to survive the distribution date but who would have taken under a future interest in the form of a class gift had the individual survived the distribution date.
   4. “Descendants”, in the phrase “surviving descendants” of a deceased beneficiary or class member in subdivisions a and b of subsection 2, mean the descendants of a deceased beneficiary or class member who would take under a class gift created in the trust.
   5. “Distribution date”, with respect to a future interest, means the time when the future interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.
   6. “Future interest” includes an alternative future interest and a future interest in the form of a class gift.
   7. “Future interest under the terms of a trust” means a future interest that was created by a transfer creating a trust or to an existing trust or by an exercise of a power of appointment to an existing trust, directing the continuance of an existing trust, designating a beneficiary of an existing trust, or creating a trust.
   8. “Surviving” in the phrase “surviving beneficiary” or “surviving descendant” means a beneficiary or a descendant who neither predeceased the distribution date nor is deemed to have predeceased the distribution date under section 30.1-09.1-02.
2. A future interest under the terms of a trust is contingent on the beneficiary’s surviving the distribution date. If a beneficiary of a future interest under the terms of a trust fails to survive the distribution date, the following apply:
   1. Except as provided in subdivision d, if the future interest is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants. They take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the distribution date.
   2. Except as provided in subdivision d, if the future interest is in the form of a class gift, other than a future interest to “issue”, “descendants”, “heirs of the body”, “heirs”, “next of kin”, “relatives”, or “family”, or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the distribution date passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which the surviving beneficiary would have been entitled had the deceased beneficiaries survived the distribution date. Each deceased beneficiary’s surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the distribution date. For the purposes of this subdivision, “deceased beneficiary” means a class member who failed to survive the distribution date and left one or more surviving descendants.
   3. For purposes of section 30.1-09.1-01, words of survivorship attached to a future interest are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section. Words of survivorship include words of survivorship that relate to the distribution date or to an earlier or an unspecified time, whether those words of survivorship are expressed in condition-precedent, condition-subsequent, or any other form.
   4. If a governing instrument creates an alternative future interest with respect to a future interest for which a substitute gift is created by subdivision a or b, the substitute gift is superseded by the alternative future interest if:
      1. The alternative future interest is in the form of a class gift and one or more members of the class is entitled to take in possession or enjoyment; or
      2. The alternative future interest is not in the form of a class gift and the expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment.
3. If, under subsection 2, substitute gifts are created and not superseded with respect to more than one future interest and the future interests are alternative future interests, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:
   1. Except as provided in subdivision b, the property passes under the primary substitute gift.
   2. If there is a younger-generation future interest, the property passes under the younger-generation substitute gift and not under the primary substitute gift.
   3. In this subsection:
      1. “Primary future interest” means the future interest that would have taken effect had all the deceased beneficiaries of the alternative future interest who left surviving descendants survived the distribution date.
      2. “Primary substitute gift” means the substitute gift created with respect to the primary future interest.
      3. “Younger-generation future interest” means a future interest that is to a descendant of a beneficiary of the primary future interest, is an alternative future interest with respect to the primary future interest, is a future interest for which a substitute gift is created, and would have taken effect had all the deceased beneficiaries who left surviving descendants survived the distribution date except the deceased beneficiary of beneficiaries of the primary future interest.
      4. “Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation future interest.
4. Except as provided in subsection 5, if, after the application of subsections 2 and 3, there is no surviving taker, the property passes in the following order:
   1. If the trust was created in a nonresiduary devise in the transferor’s will or in a codicil to the transferor’s will, the property passes under the residuary clause in the transferor’s will. For purposes of this section, the residuary clause is treated as creating a future interest under the terms of a trust.
   2. If no taker is produced by the application of subdivision a, the property passes to the transferor’s heirs under section 30.1-09.1-11.
5. If, after the application of subsections 2 and 3, there is no surviving taker and if the future interest was created by the exercise of a power of appointment:
   1. The property passes under the donor’s gift-in-default clause, if any, which clause is treated as creating a future interest under the terms of a trust; and
   2. If no taker is produced by the application of subdivision a, the property passes as provided in subsection 4. For purposes of subsection 4, “transferor” means the donor if the power was a nongeneral power and means the donee if the power was a general power.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, §§ 15, 27; 2009, ch. 283, § 22.

30.1-09.1-08. (2-708) Class gifts to descendants, issue, or heirs of the body — Form of distribution if none specified.

If a class gift in favor of “descendants”, “issue”, or “heirs of the body” does not specify the manner in which the property is to be distributed among the class members, the property is distributed among the class members who are living when the interest is to take effect in possession or enjoyment, in such shares as they would receive, under the applicable law of intestate succession, if the designated ancestor had then died intestate owning the subject matter of the class gift.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

30.1-09.1-09. (2-709) Per capita at each generation — Representation — Per stirpes.

1. In this section:
   1. “Deceased child” or “deceased descendant” means a child or a descendant who either predeceased the distribution date or is deemed to have predeceased the distribution date under section 30.1-09.1-02.
   2. “Distribution date”, with respect to an interest, means the time when the interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.
   3. “Surviving ancestor”, “surviving child”, or “surviving descendant” means an ancestor, a child, or a descendant who neither predeceased the distribution date nor is deemed to have predeceased the distribution date under section 30.1-09.1-02.
2. If a governing instrument calls for property to be distributed “per capita at each generation”, the property is divided into as many equal shares as there are surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants and deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the distribution date.
3. If an applicable statute or a governing instrument calls for property to be distributed “by representation” or “per stirpes”, the property is divided into as many equal shares as there are surviving children of the designated ancestor and deceased children who left surviving descendants. Each surviving child is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.
4. For the purposes of subsections 2 and 3, an individual who is deceased and left no surviving descendant is disregarded, and an individual who leaves a surviving ancestor who is a descendant of the designated ancestor is not entitled to a share.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, §§ 16, 27.

30.1-09.1-10. (2-710) Worthier-title doctrine abolished.

The doctrine of worthier title is abolished as a rule of law and as a rule of construction. Language in a governing instrument describing the beneficiaries of a disposition as the transferor’s “heirs”, “heirs at law”, “next of kin”, “distributees”, “relatives”, “family”, or language of similar import does not create or presumptively create a reversionary interest in the transferor.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 27.

30.1-09.1-11. (2-711) Future interests in heirs and like.

If an applicable statute or a governing instrument calls for a present or future distribution to or creates a present or future interest in a designated individual’s “heirs”, “heirs at law”, “next of kin”, “relatives”, or “family”, or language of similar import, the property passes to those persons, including the state, and in such shares as would succeed to the designated individual’s intestate estate under the intestate succession law of the designated individual’s domicile if the designated individual died when the disposition is to take effect in possession or enjoyment. If the designated individual’s surviving spouse is living but is remarried at the time the disposition is to take effect in possession or enjoyment, the surviving spouse is not an heir of the designated individual.

Source: S.L. 1993, ch. 334, § 39; 1995, ch. 322, § 17; 1995, ch. 322, § 27.

30.1-10-01. (2-801) Disclaimer of property interests. [Repealed]

Repealed by S.L. 2001, ch. 301, § 3.

30.1-10-02. (2-802) Effect of divorce, annulment, and decree of separation.

1. An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the spouse is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
2. For purposes of chapters 30.1-04 through 30.1-07 and section 30.1-13-03, a surviving spouse does not include:
   1. An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless subsequently that participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife;
   2. An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual; or
   3. An individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 12; 1993, ch. 334, § 40; 1995, ch. 322, § 27.

Cross Reference. See Section 2-804 [N.D.C.C. § 30.1-10-04] for similar provisions relating to the effect of divorce to revoke devises and other revocable provisions to a former spouse.

Cross-References.

Waiver of rights by surviving spouse, see N.D.C.C. § 30.1-05-07.

Collateral References.

Separation agreement as barring rights of surviving spouse in other’s estate, 34 A.L.R.2d 1020, 1039.

Extrajudicial separation as affecting surviving spouse’s right to widow’s allowance, 34 A.L.R.2d 1056.

Abandonment, desertion, or refusal to support on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 446.

Adultery on part of surviving spouse as affecting marital rights in deceased spouse’s estate, 13 A.L.R.3d 486.

Divorce or annulment as affecting will previously executed by husband or wife, 71 A.L.R.3d 1297.

30.1-10-03. (2-803) Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations.

1. In this section:
   1. “Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
   2. “Governing instrument” means a governing instrument executed by the decedent.
   3. “Revocable”, with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation, in favor of the killer, whether or not the decedent was then empowered to designate the decedent in place of the decedent’s killer or the decedent then had capacity to exercise the power.
2. An individual who intentionally and feloniously kills the decedent forfeits all benefits under this title with respect to the decedent’s estate, including an intestate share, an elective share, an omitted spouse’s or child’s share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent’s intestate estate passes as if the killer disclaimed the killer’s intestate share.
3. The intentional and felonious killing of the decedent:
   1. Revokes any revocable disposition or appointment of property made by the decedent to the killer in a governing instrument, provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent.
   2. Voids the interests of the killer in property held with the decedent at the time of the killing as joint tenants with the right of survivorship.
4. The voided interest under subdivision b of subsection 3 does not affect any third-party interest in property acquired for value and in good-faith reliance on an apparent title by survivorship in the killer unless a writing declaring the voided interest has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property that are relied upon, in the ordinary course of transactions involving the property, as evidence of ownership.
5. Provisions of a governing instrument are given effect as if the killer disclaimed all revoked provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.
6. A wrongful acquisition of property or interest by a killer not covered by this section must be treated in accordance with the principle that a killer cannot profit from any wrong.
7. After all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent conclusively establishes the convicted individual as the decedent’s killer for purposes of this section. In the absence of a conviction, the court, upon the petition of an interested person, must determine whether, under the preponderance of evidence standard, the individual would be found criminally accountable for the felonious and intentional killing of the decedent. If the court determines that, under that standard, the individual would be found criminally accountable for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent’s killer for purposes of this section.
8. 1. A payer or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by an intentional and felonious killing, or for having taken any other action in reliance on the validity of the governing instrument, upon request and satisfactory proof of the decedent’s death, before the payer or other third party received written notice of a claimed forfeiture or revocation under this section. A payer or other third party does not have a duty or obligation to make any determination as to whether the decedent was a victim of a felonious killing or to seek any evidence with respect to a felonious killing even if the circumstances of the decedent’s death are suspicious or questionable as to the beneficiary’s participation in any such felonious killing. A payer or other third party is only liable for actions taken two or more business days after the actual receipt by the payer or other third party of written notice. The payer or other third party may be liable for actions taken pursuant to the governing instrument only if the form of service is that described in subdivision b.
   2. The written notice must indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim of forfeiture or revocation is being made under this section. Written notice of a claimed forfeiture or revocation under this subsection must be mailed to the payer’s or third party’s main office or home by registered mail or served upon the payer or other third party in the same manner as a summons in a civil action. Notice to a sales representative of the payer or other third party does not constitute notice to the payer or other third party. Upon receipt of written notice of a claimed forfeiture or revocation under this section, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. In addition to the actions available under this section, the payer or other third party may take any action authorized by law or the governing instrument. If no probate proceedings have been commenced, the payer or other third party shall file with the court a copy of the written notice received by the payer or other third party, with the payment of funds or transfer or deposit of property. The court may not charge a filing fee to the payer or other third party for the payment to the court of amounts owed or transferred to or deposit with the court of any item of property, even if no probate proceedings have been commenced before the payment, transfer, or deposit. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, may be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. Payments, transfers, or deposits made to or with the court discharge the payer or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
9. 1. A bona fide purchaser who purchases property, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
   2. If this section or any part of this section is preempted by federal law, other than the federal Employee Retirement Income Security Act of 1974, as amended, with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 40; 1995, ch. 322, §§ 19, 27; 1997, ch. 51, § 25; 1999, ch. 294, § 3; 2007, ch. 283, § 1.

30.1-10-04. (2-804) Revocation of probate and nonprobate transfers by divorce — No revocation by other changes of circumstances.

1. In this section:
   1. “Disposition or appointment of property” includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
   2. “Divorce or annulment” means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse within the meaning of section 30.1-10-02. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
   3. “Divorced individual” includes an individual whose marriage has been annulled.
   4. “Governing instrument” means a governing instrument executed by the divorced individual before the divorce or annulment of the marriage to the former spouse.
   5. “Relative of the divorced individual’s former spouse” means an individual who is related to the divorced individual’s former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity.
   6. “Revocable”, with respect to a disposition, appointment, provision, or nomination means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the former spouse or former spouse’s relative, whether or not the divorced individual was then empowered to designate the divorced individual in place of the former spouse or in place of the former spouse’s relative and whether or not the divorced individual then had the capacity to exercise the power.
2. Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
   1. Revokes any revocable disposition or appointment of property made by a divorced individual to the individual’s former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse, provision in a governing instrument conferring a general or special power of appointment on the divorced individual’s former spouse or on a relative of the divorced individual’s former spouse, and nomination in a governing instrument, nominating a divorced individual’s former spouse or a relative of the divorced individual’s former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian.
   2. Severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests of former spouses into equal tenancies in common.
3. A severance under subdivision b of subsection 2 does not affect any third-party interest in property acquired for value and in good-faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
4. Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment.
5. Provisions revoked solely by this section are revived by the divorced individual’s remarriage to the former spouse or by a nullification of the divorce or annulment.
6. No change of circumstances other than as described in this section and in section 30.1-10-03 effects a revocation.
7. 1. A payer or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken any other action in reliance on the validity of the governing instrument, before the payer or other third party received written notice of the divorce, annulment, or remarriage. A payer or other third party does not have a duty or obligation to inquire as to the continued marital relationship between the decedent and a beneficiary or to seek any evidence with respect to a marital relationship. A payer or other third party is only liable for actions taken two or more business days after the actual receipt by the payer or other third party of written notice. The payer or other third party may be liable for actions taken pursuant to the governing instrument only if the form of service is that described in subdivision b.
   2. The written notice must indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a divorce, annulment, or remarriage of the decedent and the designated beneficiary occurred. Written notice of the divorce, annulment, or remarriage under this subdivision must be mailed to the payer’s or other third party’s main office or home by registered mail or served upon the payer or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment, or remarriage, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. In addition to the actions available under this section, the payer or other third party may take any action authorized by law or the governing instrument. If no probate proceedings have been commenced, the payer or other third party shall file with the court a copy of the written notice received by the payer or other third party with the payment of funds or transfer or deposit of property. The court may not charge a filing fee to the payer or other third party for the payment to the court of amounts owed or transferred to or deposit with the court of any item of property, even if no probate proceedings have been commenced before the payment, transfer, or deposit. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. A filing fee, if any, may be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. Payments, transfers, or deposits made to or with the court discharge the payer or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
8. 1. A bona fide purchaser who purchases property from a former spouse, relative of a former spouse, or any other person, or who receives from a former spouse, relative of a former spouse, or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor liable under this section for the amount of the payment or the value of the item of property or benefit. But a former spouse, relative of a former spouse, or other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
   2. If this section or any part of this section is preempted by federal law, other than the federal Employee Retirement Income Security Act of 1974, as amended, with respect to a payment, an item of property, or any other benefit covered by this section, a former spouse, relative of the former spouse, or any other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

Source: S.L. 1993, ch. 334, § 40; 1995, ch. 322, §§ 20, 27; 1999, ch. 294, § 4.

30.1-10-05. (2-805) Reformation to correct mistakes.

The court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence that the transferor’s intent and the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.

Source: S.L. 2009, ch. 283, § 23.

Effective Date.

This section became effective August 1, 2009.

30.1-10-06. (2-806) Modification to achieve transferor’s tax objectives.

To achieve the transferor’s tax objectives, the court may modify the terms of a governing instrument in a manner that is not contrary to the transferor’s probable intention. The court may provide that the modification has retroactive effect.

Source: S.L. 2009, ch. 283, § 24.

Effective Date.

This section became effective August 1, 2009.

30.1-10.1-01. (2-1102) Definitions.

In this chapter:

1. “Beneficiary designation” means an instrument, other than an instrument creating a trust, naming the beneficiary of an insurance or annuity policy; an account with a designation for payment on death; a security registered in beneficiary form; a pension, profit-sharing, retirement, or other employment-related benefit plan; or any other nonprobate transfer at death.
2. “Disclaimant” means the person to whom the disclaimed interest or power would have passed had the disclaimer not been made.
3. “Disclaimed interest” means the interest or share to which the disclaimant would have been entitled had the disclaimer not been made.
4. “Disclaimer” means a refusal to accept an interest in, or power over, property.
5. “Distribution time” means the time when the disclaimed interest would have taken effect in possession or enjoyment.
6. “Fiduciary” means a personal representative, trustee, an agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person.
7. “Future interest” means an interest that takes effect in possession or enjoyment, if at all, after the time of its creation.
8. “Jointly held property” means property held in the name of two or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property.
9. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
10. “Signed” means, with present intent to authenticate or adopt a record, to execute or adopt a tangible symbol, or attach to or logically associate with the record an electronic sound, symbol, or process.
11. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state.
12. “Trust” means an express trust, charitable or noncharitable, with additions, whenever and however created; and means a trust created pursuant to a statute, judgment, or decree which requires the trust to be administered in the manner of an express trust.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 1.

Collateral References.

Appointee’s right to renounce appointment under power, 9 A.L.R.2d 1382.

Acceptance or renunciation of devise or bequest by beneficiary, what establishes, 93 A.L.R.2d 8.

Taxes: renunciation of inheritance, devise, or legacy as affecting state inheritance, estate, or succession tax, 27 A.L.R.3d 1354.

Creditor’s right to prevent debtor’s renunciation of benefit under will or debtor’s election to take under will, 39 A.L.R.4th 633.

Law Reviews.

North Dakota Estate Planning Under the Tax Reform Act of 1976, 54 N.D. L. Rev. 7 (1977).

30.1-10.1-02. (2-1105) General provisions.

1. A person may disclaim, in whole or in part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.
2. Except to the extent the fiduciary’s power to disclaim is expressly limited by another statute of this state or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.
3. A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or as any other interest or estate in the property.
4. A disclaimer must be in a writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in section 30.1-10.1-09.
5. A disclaimer becomes irrevocable upon the later to occur of its delivery or filing as provided in section 30.1-10.1-09, or when it becomes effective as provided in sections 30.1-10.1-03 through 30.1-10.1-08.
6. A disclaimer made under this chapter is not a transfer, assignment, or release.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 2.

30.1-10.1-03. (2-1106) Disclaimer of interest in property.

1. Except for disclaimers governed by sections 30.1-10.1-04 and 30.1-10.1-05, subsections 2 through 5 apply to a disclaimer of an interest in property.
2. The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable, or, if the interest arose under the law of intestate succession, as of the intestate’s death.
3. The disclaimed interest passes according to a provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general.
4. If the instrument does not contain a provision described in subsection 3 and if the disclaimant is an individual, the disclaimed interest passes as if the disclaimant had died immediately before the distribution time. However, if by law or under the instrument the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the distribution time, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution. If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.
5. Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the distribution time, but a future interest held by the disclaimant does not accelerate in possession or enjoyment.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 3.

30.1-10.1-04. (2-1107) Disclaimer of rights of survivorship in jointly held property.

1. Upon the death of a holder of jointly held property, a surviving holder may disclaim in whole or in part the greater of a fractional share of the property determined by dividing the number one by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates or all of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant.
2. The disclaimer under subsection 1 takes effect as of the death of the holder to whose death the disclaimer relates.
3. An interest disclaimed by a surviving holder of jointly held property passes as if the person whose interest is being disclaimed predeceased the holder to whose death the disclaimer relates.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 4.

30.1-10.1-05. (2-1108) Disclaimer of interest by trustee.

If a trustee disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 5.

30.1-10.1-06. (2-1109) Disclaimer of powers of appointment and other powers not held in fiduciary capacity.

1. If a holder disclaims a power of appointment or other power not held in a fiduciary capacity and if the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
2. If a holder disclaims a power of appointment or other power not held in a fiduciary capacity and if the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the date of the last exercise of the power.
3. If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the instrument creating the power is construed as if the power ceased to exist when the disclaimer became effective.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 6.

30.1-10.1-07. (2-1110) Disclaimer by appointee, object, or taker in default of exercise of power of appointment.

1. The disclaimer by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.
2. A disclaimer by the object or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 7.

30.1-10.1-08. (2-1111) Disclaimer of powers held in fiduciary capacity.

1. If a fiduciary disclaims a power held in a fiduciary capacity which has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.
2. If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised, the disclaimer takes effect immediately after the last exercise of the power.
3. A disclaimer under this section is effective as to other fiduciaries if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 8.

30.1-10.1-09. (2-1112) Delivery.

1. In subsections 2 through 11, delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt.
2. In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust, a disclaimer must be delivered to the personal representative of the decedent’s estate, or if a personal representative is not then serving, it must be filed with the court having jurisdiction to appoint the personal representative.
3. In the case of an interest in a testamentary trust, a disclaimer must be delivered to the trustee then serving, or if a trustee is not then serving, to the personal representative of the decedent’s estate, or if a personal representative is not then serving, it must be filed with a court having jurisdiction to enforce the trust.
4. In the case of an interest in an inter vivos trust, a disclaimer must be delivered to the trustee then serving, or if a trustee is not then serving, it must be filed with a court having jurisdiction to enforce the trust, or if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest.
5. In the case of an interest created by a beneficiary designation which is disclaimed before the designation becomes irrevocable, the disclaimer must be delivered to the person making the beneficiary designation.
6. In the case of an interest created by a beneficiary designation which is disclaimed after the designation becomes irrevocable, a disclaimer of an interest in personal property must be delivered to the person obligated to distribute the interest and the disclaimer of an interest in real property must be recorded in the office of the county recorder of the county where the real property that is the subject of the disclaimer is located.
7. In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes.
8. In the case of a disclaimer by an object or taker in default of exercise of a power of appointment, the disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power, or if a fiduciary is not then serving, it must be filed with the court having authority to appoint the fiduciary.
9. In the case of a disclaimer by an appointee of a nonfiduciary power of appointment, to the holder, personal representative of the holder’s estate, or to the fiduciary under the instrument that created the power, or if a fiduciary is not then serving, it must be filed with the court having authority to appoint the fiduciary.
10. In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection 2, 3, or 4, as if the power disclaimed were an interest in property.
11. In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal’s representative.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 9; 2011, ch. 241, § 1.

30.1-10.1-10. (2-1113) When disclaimer barred or limited.

1. A disclaimer is barred by a written waiver of the right to disclaim.
2. A disclaimer of an interest in property is barred if before the disclaimer becomes effective the disclaimant accepts the interest sought to be disclaimed; the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or makes a contract to do so; or, a judicial sale of the interest sought to be disclaimed occurs.
3. A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
4. A disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary capacity is not barred by its past exercise unless the power is exercisable in favor of the disclaimant.
5. A disclaimer is barred or limited if so provided by law other than this chapter.
6. A disclaimer of a power over property which is barred by this section is ineffective. A disclaimer of an interest in property which is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this chapter had the disclaimer not been barred.
7. Notwithstanding any other provision of this chapter, if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to the provisions of title 26 of the United States Code or regulations promulgated under that title, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this chapter.

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 10.

30.1-10.1-11. (2-1115) Recording of disclaimer.

If an instrument transferring an interest in or power over property subject to a disclaimer is required or permitted by law to be filed, recorded, or registered, the disclaimer may be so filed, recorded, or registered. Except as required in subsection 6 of section 30.1-10.1-09, failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.

Source: S.L. 2001, ch. 301, § 1; 2011, ch. 241, § 2.

30.1-10.1-12. (2-1116, 2-1117) Applicability.

1. This chapter does not limit the right of a person to waive, release, disclaim, or renounce property or an interest in or power over property under any law other than this chapter.
2. This chapter applies to any interest in or power over property, whenever created.
3. Except as otherwise provided in section 30.1-10.1-10, an interest in or power over property existing on August 1, 2001, as to which the time for delivering or filing a disclaimer under law superseded by this chapter has not expired may be disclaimed after August 1, 2001.
4. This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act [15 U.S.C. 7001 et seq.] but does not modify, limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)] or authorize electronic delivery of any of the notices described in section 103(b) of that Act [15 U.S.C. 7003(b)].

Source: S.L. 2001, ch. 301, § 1; 2003, ch. 274, § 11.

30.1-11-01. (2-515) Deposit of will in testator’s lifetime.

A will may be deposited by the testator or the testator’s agent with a recorder for safekeeping. The will must be sealed and kept confidential. During the testator’s lifetime, a deposited will must be delivered only to the testator or to a person authorized in a writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible, and to ensure that it will be resealed and kept on deposit after the examination. Upon being informed of the testator’s death, the recorder shall notify any person designated to receive the will and deliver it to that person on request or the recorder may deliver the will to the appropriate court.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 41; 1995, ch. 322, § 27; 1999, ch. 278, § 55; 2001, ch. 120, § 1.

30.1-11-02. (2-516) Duty of custodian of will — Liability.

After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate, and if none is known, to an appropriate court. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 42; 1995, ch. 322, § 27.

30.1-12-01. (3-101) Devolution of estate at death — Restrictions.

The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to the person’s property, are subject to the restrictions and limitations contained in this title to facilitate the prompt settlement of estates. Upon the death of a person, the decedent’s real and personal property devolves to the persons to whom it is devised by the decedent’s last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to the decedent’s heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property, and family allowance, to rights of creditors, elective share of the surviving spouse, and to administration.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Successors’ rights if there is no administration, see N.D.C.C. § 30.1-20-01.

30.1-12-02. (3-102) Necessity of order of probate for will.

Except as provided in section 30.1-23-01, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate or an adjudication of probate by the court.

Source: S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 4; 1995, ch. 322, § 21.

Collateral References.

Sufficiency of evidence support grant of summary judgment in will probate or contest proceeding, 53 A.L.R.4th 561.

30.1-12-03. (3-103) Necessity of appointment for administration.

Except as otherwise provided in chapters 30.1-24 and 30.1-25, to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court, qualify, and be issued letters. Administration of an estate is commenced by the issuance of letters.

Source: S.L. 1973, ch. 257, § 1.

30.1-12-04. (3-104) Claims against decedent — Necessity of administration.

No proceeding to enforce a claim against the estate of a decedent or the decedent’s successors may be revived or commenced before the appointment of a personal representative. After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by chapters 30.1-12 through 30.1-23. After distribution, a creditor whose claim has not been barred may recover from the distributees as provided in section 30.1-21-04 or from a former personal representative individually liable as provided in section 30.1-21-05. This section has no application to a proceeding by a secured creditor of the decedent to enforce the secured creditor’s right to the secured creditor’s security except as to any deficiency judgment which might be sought therein.

Source: S.L. 1973, ch. 257, § 1.

30.1-12-05. (3-105) Proceedings affecting devolution and administration — Jurisdiction of subject matter.

Persons interested in decedents’ estates may apply to the court for determination in the informal proceedings provided in chapters 30.1-12 through 30.1-23 and may petition the court for orders in formal proceedings within the court’s jurisdiction, including those described in chapters 30.1-12 through 30.1-23. The court has exclusive jurisdiction of formal proceedings to determine how decedents’ estates subject to the laws of this state are to be administered, expended, and distributed, including actions to determine title to property alleged to belong to the estate and of any action or proceeding in which property distributed by a personal representative or its value is sought to be subjected to rights of creditors or successors of the decedent.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 69, § 36.

Cross-References.

Subject matter jurisdiction, see N.D.C.C. § 30.1-02-02.

30.1-12-06. (3-106) Proceedings within the exclusive jurisdiction of court — Service — Jurisdiction over persons.

In proceedings within the exclusive jurisdiction of the court where notice is required by this title or by rule, and in proceedings to construe probated wills or determine heirs which concern estates that have not been and cannot now be opened for administration, interested persons may be bound by the orders of the court in respect to property in or subject to the laws of this state by notice in conformity with section 30.1-03-01. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 13.

Cross-References.

Curative proceedings for persons interested in estate but not given notice of prior proceeding, see N.D.C.C. § 30.1-21-01.

Subject matter jurisdiction, see N.D.C.C. §§ 30.1-02-02, 30.1-12-05.

30.1-12-07. (3-107) Scope of proceedings — Proceedings independent — Exception.

Unless supervised administration as described in chapter 30.1-16 is involved, each proceeding before the court is independent of any other proceeding involving the same estate. Petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay. Except as required for proceedings which are particularly described by other sections of chapters 30.1-12 through 30.1-23, no petition is defective because it fails to embrace all matters which might then be the subject of a final order, proceedings for probate of wills or adjudications of no will may be combined with proceedings for appointment of personal representatives, and a proceeding for appointment of personal representative is concluded by an order making or declining the appointment.

Source: S.L. 1973, ch. 257, § 1.

30.1-12-08. (3-108) Probate, testacy, and appointment proceedings — Ultimate time limit.

No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator’s domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than three years after the decedent’s death, except:

1. If a previous proceeding was dismissed because of doubt about the fact of the decedent’s death, appropriate probate, appointment, or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent’s death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceedings.
2. Appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person.
3. A proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within the later of twelve months from the informal probate or three years from the decedent’s death.
4. An informal appointment or a formal testacy or appointment proceeding may be commenced thereafter if no proceeding concerning the succession or estate administration has occurred within the three-year period after the decedent’s death, but the personal representative has no right to possess estate assets as provided in section 30.1-18-09 beyond that necessary to confirm title to the assets in the successors to the estate and claims other than expenses of administration may not be presented against the estate.
5. A formal testacy proceeding may be commenced at any time after three years from the decedent’s death for the purpose of establishing an instrument to direct or control the ownership of property passing or distributable after the decedent’s death from one other than the decedent when the property is to be appointed by the terms of the decedent’s will or is to pass or be distributed as a part of the decedent’s estate or its transfer is otherwise to be controlled by the terms of the decedent’s will.

These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate. In cases under subsection 1 or 2, the date on which a testacy or appointment proceeding is properly commenced shall be deemed to be the date of the decedent’s death for purposes of other limitations provisions of this title which relate to the date of death.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 4; 1991, ch. 348, § 1; 1995, ch. 322, § 22.

30.1-12-09. (3-109) Statutes of limitation on decedent’s claim for relief.

No statute of limitation running on a claim for relief belonging to a decedent which had not been barred as of the date of the decedent’s death applies to bar a claim for relief surviving the decedent’s death sooner than four months after death. A claim for relief which, but for this section, would have been barred less than four months after death is barred after four months unless tolled.

Source: S.L. 1973, ch. 257, § 1; 1985, ch. 82, § 73.

30.1-13-01. (3-201) Venue for first and subsequent estate proceedings — Location of property.

1. Venue for the first informal or formal testacy or appointment proceedings after a decedent’s death is:
   1. In the county where the decedent was domiciled at the time of death.
   2. If the decedent was not domiciled in this state, in any county where property of the decedent was located at the time of death.
2. Venue for all subsequent proceedings within the exclusive jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in section 30.1-02-03 or subsection 3.
3. If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court.
4. For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides, or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Place of personal representative’s appointment as venue of action against him in his official capacity, 93 A.L.R.2d 1199.

30.1-13-02. (3-202) Appointment or testacy proceedings — Conflicting claim of domicile in another state.

If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this state, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this state must stay, dismiss, or permit suitable amendment in the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in this state.

Source: S.L. 1973, ch. 257, § 1.

30.1-13-03. (3-203) Priority among persons seeking appointment as personal representative.

1. Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
   1. The person with priority as determined by a probated will, including a person nominated by a power conferred in a will.
   2. The surviving spouse of the decedent who is a devisee of the decedent.
   3. Other devisees of the decedent.
   4. The surviving spouse of the decedent.
   5. Other heirs of the decedent.
   6. The guardian or conservator of the decedent at the time of the decedent’s death.
   7. A trust company.
   8. Forty-five days after the death of the decedent, any creditor.
2. An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in subsection 1 apply, except that:
   1. If the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person; or
   2. In case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value, or, in default of this accord, any suitable person.
3. A person entitled to letters under subdivisions b through e of subsection 1 may nominate a qualified person to act as personal representative. Any person may renounce the person’s right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those who do not renounce must concur in nominating another to act for them, or in applying for appointment.
4. Conservators of the estates of protected persons, or if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another’s appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.
5. Appointment of one who does not have priority, including priority resulting from renunciation or nomination determined pursuant to this section, may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.
6. No person is qualified to serve as a personal representative who is:
   1. Under the age of eighteen; or
   2. A person whom the court finds unsuitable in formal proceedings.
7. A personal representative appointed by a court of the decedent’s domicile has priority over all other persons except in cases in which the decedent’s will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.
8. This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.

Source: S.L. 1973, ch. 257, § 1; 1981, ch. 347, § 1; 2019, ch. 273, § 1, effective August 1, 2019.

30.1-13-04. (3-204) Demand for notice of order or filing concerning decedent’s estate.

Any person desiring notice of any order or filing pertaining to a decedent’s estate in which the person has a financial or property interest may file a demand for notice with the court, at any time after the death of the decedent, stating the name of the decedent, the nature of the person’s interest in the estate, and the demandant’s address or that of the demandant’s attorney. The clerk shall mail a copy of the demand to the personal representative, if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice, as prescribed in section 30.1-03-01, to the demandant or the demandant’s attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of the demandant’s interest in the estate.

Source: S.L. 1973, ch. 257, § 1.

30.1-14-01. (3-301) Informal probate or appointment proceedings — Application — Contents.

1. Applications for informal probate or informal appointment shall be directed to the court, and verified by the applicant to be accurate and complete to the best of the applicant’s knowledge and belief as to the following information:
   1. Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following:
      1. A statement of the interest of the applicant.
      2. The name and date of death of the decedent, the decedent’s age, and the county and state of domicile at the time of death, and the names and addresses of the spouse, children, heirs, and devisees, and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant.
      3. If the decedent was not domiciled in the state at the time of death, a statement showing venue.
      4. A statement identifying and indicating the address of any personal representative of the decedent appointed in this state or elsewhere whose appointment has not been terminated.
      5. A statement indicating whether the applicant has received a demand for notice, or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere.
      6. A statement that the time limit for informal probate or appointment under this chapter has not expired because three years or less have elapsed since the decedent’s death, or, if more than three years from the death have elapsed, circumstances described in section 30.1-12-08 have occurred authorizing tardy probate or appointment.
   2. An application for informal probate of a will shall state the following, in addition to the statements required by subdivision a:
      1. That the original of the decedent’s last will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application.
      2. That the applicant, to the best of the applicant’s knowledge, believes the will to have been validly executed.
      3. That after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent’s last will.
   3. An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address, and priority for appointment of the person whose appointment is sought.
   4. An application for informal appointment of an administrator in intestacy shall state, in addition to the statements required by subdivision a:
      1. That after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this state under section 30.1-02-01, or, a statement why any such instrument of which the applicant may be aware is not being probated.
      2. The priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under section 30.1-13-03.
   5. An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant.
   6. An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in subsection 3 of section 30.1-17-10, or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.
2. By verifying an application for informal probate or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application, or for perjury, that may be instituted against the applicant.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, §§ 14, 15.

30.1-14-01.1. Duty of court to provide forms to an applicant — Assistance of attorney not required.

The court shall provide the necessary forms to an applicant who requests aid in using the informal probate or appointment procedure. The forms and explanatory materials must be prepared by the state court administrator and provided at cost. The assistance of an attorney is not required for informal probate or appointment procedure.

Source: S.L. 1977, ch. 297, § 1; 1979, ch. 378, § 1; 1987, ch. 396, § 1.

30.1-14-02. (3-302) Informal probate — Duty of court — Effect of informal probate.

Upon receipt of an application requesting informal probate of a will, the court, upon making the findings required by section 30.1-14-03, shall issue a written statement of informal probate if at least one hundred twenty hours have elapsed since the decedent’s death. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void.

Source: S.L. 1973, ch. 257, § 1.

30.1-14-03. (3-303) Informal probate — Proof and findings required.

1. In an informal proceeding for original probate of a will, the court shall determine whether:
   1. The application is complete.
   2. The applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant’s knowledge and belief.
   3. The applicant appears from the application to be an interested person as defined in subsection 25 of section 30.1-01-06.
   4. On the basis of the statements in the application, venue is proper.
   5. An original, duly executed, and apparently unrevoked will is in the court’s possession.
   6. Any notice required by section 30.1-13-04 has been given and that the application is not within section 30.1-14-04.
   7. It appears from the application that the time limit for original probate has not expired.
2. The application must be denied if it indicates that a personal representative has been appointed in another county of this state or, except as provided in subsection 4, if it appears that this or another will of the decedent has been the subject of a previous probate order.
3. A will that appears to have the required signatures and which contains an attestation clause showing that requirements of execution under section 30.1-08-02 or 30.1-08-06 have been met must be probated without further proof. In other cases, the court may assume execution if the will appears to have been properly executed, or the court may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.
4. Informal probate of a will that has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated.
5. A will from a place which does not provide for probate of a will after death and which is not eligible for probate under subsection 1 may be probated in this state upon receipt by the court of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 43; 1995, ch. 322, § 27.

30.1-14-04. (3-304) Informal probate — Unavailable in certain cases.

Applications for informal probate which relate to one or more of a known series of testamentary instruments, other than a will and one or more codicils to the will, the latest of which does not expressly revoke the earlier, must be declined.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 5.

30.1-14-05. (3-305) Informal probate — Court not satisfied.

If the court is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of sections 30.1-14-03 and 30.1-14-04, or for any other reason specified by law, it may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.

Source: S.L. 1973, ch. 257, § 1; 1987, ch. 396, § 2.

30.1-14-06. (3-306) Informal probate — Notice requirements.

The moving party must give notice, as described in section 30.1-03-01, of the moving party’s application for informal probate to any person demanding it pursuant to section 30.1-13-04, and to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required.

Source: S.L. 1973, ch. 257, § 1.

30.1-14-07. (3-307) Informal appointment proceedings — Delay in order — Duty of court — Effect of appointment.

1. Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in section 30.1-17-14, if at least one hundred twenty hours have elapsed since the decedent’s death, the court, after making the findings required by section 30.1-14-08, shall appoint the applicant subject to qualification and acceptance. If the decedent was a nonresident, the court shall delay the order of appointment until thirty days have elapsed since death unless the personal representative appointed at the decedent’s domicile is the applicant or unless the decedent’s will directs that the estate be subject to the laws of this state. The court must make its order of appointment and issue letters testamentary or letters of administration within ten working days after all requirements for informal proceedings have been met.
2. The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in sections 30.1-17-08 through 30.1-17-12, but is not subject to retroactive vacation.

Source: S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 5; 1981, ch. 584, § 1; 1987, ch. 396, § 3.

30.1-14-08. (3-308) Informal appointment proceedings — Proof and findings required.

1. In informal appointment proceedings, the court shall determine whether:
   1. The application for informal appointment of a personal representative is complete.
   2. The applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant’s knowledge and belief.
   3. The applicant appears from the application to be an interested person as defined in subsection 25 of section 30.1-01-06.
   4. On the basis of the statements in the application, venue is proper.
   5. Any will to which the requested appointment relates has been formally or informally probated, but this requirement does not apply to the appointment of a special administrator.
   6. Any notice required by section 30.1-13-04 has been given.
   7. From the statements in the application, the person whose appointment is sought has priority entitling the person to the appointment.
2. Unless section 30.1-17-12 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in subsection 3 of section 30.1-17-10 has been appointed in this or another county of this state, that, unless the applicant is the domiciliary personal representative or the representative’s nominee, the decedent was not domiciled in this state and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile or that other requirements of this section have not been met.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 44; 1995, ch. 322, § 27.

30.1-14-09. (3-309) Informal appointment proceedings — Court not satisfied.

If the court is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of sections 30.1-14-07 and 30.1-14-08, or for any other reason, it may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.

Source: S.L. 1973, ch. 257, § 1.

30.1-14-10. (3-310) Informal appointment proceedings — Notice requirements.

The moving party must give notice as described by section 30.1-03-01 of the moving party’s intention to seek an appointment informally:

1. To any person demanding it pursuant to section 30.1-13-04.
2. To any person having a prior or equal right to appointment not waived in writing and filed with the court.

No other notice of an informal appointment proceeding is required.

Source: S.L. 1973, ch. 257, § 1.

30.1-14-11. (3-311) Informal appointment unavailable in certain cases.

If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this state, and which is not filed for probate in this court, the court shall decline the application.

Source: S.L. 1973, ch. 257, § 1.

30.1-15-01. (3-401) Formal testacy proceedings — Nature — When commenced.

1. A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in subsection 1 of section 30.1-15-02 in which the interested person requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with subsection 2 of section 30.1-15-02 for an order that the decedent died intestate.
2. A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.
3. During the pendency of a formal testacy proceeding, the court shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.
4. Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising the power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of that office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Probate of more than one instrument, see N.D.C.C. § 30.1-15-10.

30.1-15-02. (3-402) Formal testacy or appointment proceedings — Petition — Contents.

1. Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will:
   1. Requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs.
   2. Contains the statements required for informal applications as stated in paragraphs 1 through 6 of subdivision a of subsection 1 of section 30.1-14-01 and the statements required by paragraphs 2 and 3 of subdivision b of subsection 1 of section 30.1-14-01.
   3. States whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
2. A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by subdivisions a and d of subsection 1 of section 30.1-14-01, and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case the statements required by paragraph 2 of subdivision d of subsection 1 of section 30.1-14-01 may be omitted.

If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.

Source: S.L. 1973, ch. 257, § 1; 1999, ch. 50, § 49.

30.1-15-03. (3-403) Formal testacy proceeding — Notice of hearing on petition.

1. Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by section 30.1-03-01 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under section 30.1-13-04. Notice shall be given to the following persons:
   1. The surviving spouse, children, and other heirs of the decedent;
   2. The devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere; and
   3. Any personal representative of the decedent whose appointment has not been terminated.
2. If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on said petition shall be sent by registered mail to the alleged decedent at the alleged decedent’s last-known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:
   1. By inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent.
   2. By notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent.
   3. By engaging the services of an investigator.

Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated.

The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.

Source: S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 6.

Cross-References.

Waiver of notice, see N.D.C.C. § 30.1-03-02.

30.1-15-04. (3-404) Formal testacy proceedings — Written objections to probate — Demand for jury trial.

Any party to a formal proceeding who opposes the probate of a will for any reason shall state in that party’s pleadings the objections to probate of the will. In a contested formal testacy proceeding, any party is entitled to a jury trial of all issues of fact by serving upon all appropriate parties and filing with the court a written demand for jury trial. The written demand must be affixed to the pleading of the party which raises any issues of fact and may not be served and filed later than seven days before the time set for hearing.

Source: S.L. 1973, ch. 257, § 1; 1985, ch. 368, § 1.

30.1-15-05. (3-405) Formal testacy proceedings — Uncontested cases — Hearings and proof.

If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of section 30.1-15-09 have been met, or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit or testimony of one of any attesting witnesses to the instrument is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit.

Source: S.L. 1973, ch. 257, § 1.

30.1-15-06. (3-406) Formal testacy proceedings — Contested cases.

In a contested case in which the proper execution of a will is at issue, the following rules apply:

1. If the will is self-proved pursuant to section 30.1-08-04, the will complies with the requirements for execution without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it, unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit.
2. If the will is notarized pursuant to paragraph 2 of subdivision c of subsection 1 of section 30.1-08-02, but not self-proved, there is a rebuttable presumption that the will complies with the requirements for execution upon filing the will.
3. If the will is witnessed pursuant to paragraph 1 of subdivision c of subsection 1 of section 30.1-08-02, but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this state, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred.

Source: S.L. 1973, ch. 257, § 1; 2009, ch. 283, § 25.

Cross-References.

Defenses and objections, see N.D.R.Civ.P. 12.

Rules incorporated into statutes, see N.D.R.Civ.P. 81(c).

30.1-15-07. (3-407) Formal testacy proceedings — Burdens in contested cases.

In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, revocation, or other cause affecting its validity. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 16.

30.1-15-08. (3-408) Formal testacy proceedings — Will construction — Effect of final order in another jurisdiction.

A final order of a court of another state determining testacy, the validity or construction of a will, made in a proceeding involving notice to and an opportunity for contest by all interested persons must be accepted as determinative by the courts of this state if it includes, or is based upon, a finding that the decedent was domiciled at the time of death in the state where the order was made.

Source: S.L. 1973, ch. 257, § 1.

30.1-15-09. (3-409) Formal testacy proceedings — Order — Foreign will.

After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the court finds that the testator is dead, venue is proper, and that the proceeding was commenced within the limitation prescribed in section 30.1-12-08, it shall determine the decedent’s domicile at death, the decedent’s heirs, and the decedent’s state of testacy. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by section 30.1-17-12. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a place which does not provide for probate of a will after death may be proved for probate in this state by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of the other place.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Murderer cannot inherit from victim, see N.D.C.C. § 30.1-10-03.

30.1-15-10. (3-410) Formal testacy proceedings — Probate of more than one instrument.

If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of an executor, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of section 30.1-15-12.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Probate where two or more testamentary documents, bearing the same date or undated, are proffered, 17 A.L.R.3d 603.

30.1-15-11. (3-411) Formal testacy proceedings — Partial intestacy.

If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent’s estate is or may be partially intestate, the court shall enter an order to that effect.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Partial invalidity: may parts of will be upheld notwithstanding failure of other parts for lack of testamentary mental capacity or undue influence, 64 A.L.R.3d 261.

30.1-15-12. (3-412) Formal testacy proceedings — Effect of order — Vacation.

Subject to appeal and subject to vacation as provided herein and in section 30.1-15-13, a formal testacy order under sections 30.1-15-09 through 30.1-15-11, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent’s estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:

1. The court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will:
   1. Were unaware of its existence at the time of the earlier proceeding; or
   2. Were unaware of the earlier proceeding and were given no notice thereof, except by publication.
2. If intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons:
   1. Were unaware of their relationship to the decedent;
   2. Were unaware of the decedent’s death; or
   3. Were given no notice of any proceeding concerning the decedent’s estate, except by publication.
3. A petition for vacation under either subsection 1 or 2 must be filed prior to the earlier of the following time limits:
   1. If a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate, or, if the estate is closed by statement, six months after the filing of the closing statement.
   2. Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by section 30.1-12-08 when it is no longer possible to initiate an original proceeding to probate a will of the decedent.
   3. Twelve months after the entry of the order sought to be vacated.
4. The order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs.
5. The finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at the alleged decedent’s last-known address and the court finds that a search under subsection 2 of section 30.1-15-03 was made.

If the alleged decedent is not dead, even if notice was sent and search was made, the alleged decedent may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any of the estate or its proceeds from distributees which is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is equitable in view of all of the circumstances.

Source: S.L. 1973, ch. 257, § 1; 1995, ch. 322, § 23.

30.1-15-13. (3-413) Formal testacy proceedings — Vacation of order for other cause.

For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.

Source: S.L. 1973, ch. 257, § 1.

30.1-15-14. (3-414) Formal proceedings concerning appointment of personal representative.

1. A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as personal representative, or of one who previously has been appointed personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by section 30.1-15-02, as well as by this section. In other cases, the petition shall contain or adopt the statements required by subsection 1 of section 30.1-14-01 and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise.
2. After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative, and any person having or claiming priority for appointment as personal representative, the court shall determine who is entitled to appointment under section 30.1-13-03, make a proper appointment and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under section 30.1-17-11.

Source: S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 7; 1981, ch. 584, § 2.

30.1-16-01. (3-501) Supervised administration — Nature of proceeding.

Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent’s estate under the continuing authority of the court which extends until entry of an order approving distribution of the estate and discharging the personal representative, or other order terminating the proceeding. A supervised personal representative is responsible to the court, as well as to the interested parties, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided in this chapter, or as otherwise ordered by the court, a supervised personal representative has the same duties and powers as a personal representative who is not supervised.

Source: S.L. 1973, ch. 257, § 1.

30.1-16-02. (3-502) Supervised administration — Petition — Order.

A petition for supervised administration may be filed by any interested person or by a personal representative at any time or the request for supervised administration may be joined with a petition in a testacy or appointment proceeding. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for supervised administration shall include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for supervised administration, even though the request for supervised administration may be denied. After notice to interested persons, the court shall order supervised administration of a decedent’s estate:

1. If the decedent’s will directs supervised administration, it shall be ordered unless the court finds that circumstances bearing on the need for supervised administration have changed since the execution of the will and that there is no necessity for supervised administration.
2. If the decedent’s will directs unsupervised administration, supervised administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate.
3. In other cases if the court finds that supervised administration is necessary under the circumstances.

Source: S.L. 1973, ch. 257, § 1.

30.1-16-03. (3-503) Supervised administration — Effect on other proceedings.

1. The pendency of a proceeding for supervised administration of a decedent’s estate stays action on any informal application then pending or thereafter filed.
2. If a will has been previously probated in informal proceedings, the effect of the filing of a petition for supervised administration is as provided for formal testacy proceedings by section 30.1-15-01.
3. After receiving notice of the filing of a petition for supervised administration, a personal representative who has been appointed previously shall not exercise the power to distribute any estate. The filing of the petition does not affect the personal representative’s other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition.

Source: S.L. 1973, ch. 257, § 1.

30.1-16-04. (3-504) Supervised administration — Powers of personal representative.

Unless restricted by the court, a supervised personal representative has, without interim orders approving exercise of a power, all powers of personal representatives under this title, but shall not exercise the power to make any distribution of the estate without prior order of the court. Any other restriction on the power of a personal representative which may be ordered by the court must be endorsed on the personal representative’s letters of appointment and, unless so endorsed, is ineffective as to persons dealing in good faith with the personal representative.

Source: S.L. 1973, ch. 257, § 1.

30.1-16-05. (3-505) Supervised administration — Interim orders — Distribution and closing orders.

Unless otherwise ordered by the court, supervised administration is terminated by order in accordance with time restrictions, notices, and contents of orders prescribed for proceedings under section 30.1-21-01. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of a supervised administration on the application of the personal representative or any interested person.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-01. (3-601) Qualification.

Prior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-02. (3-602) Acceptance of appointment — Consent to jurisdiction.

By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the personal representative, or mailed by ordinary first-class mail to the personal representative’s address as listed in the application or petition for appointment or as thereafter reported to the court and to the personal representative’s address as then known to the petitioner.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-03. (3-603) Bond not required without court order — Exceptions.

No bond is required of a personal representative appointed in informal proceedings, except:

1. Upon the appointment of a special administrator;
2. When an executor or other personal representative is appointed to administer an estate under a will containing an express requirement of bond; or
3. When bond is required under section 30.1-17-05.

Bond may be required by court order at the time of appointment of a personal representative appointed in any formal proceeding, except that bond is not required of a personal representative appointed in formal proceedings if the will relieves the personal representative of bond, unless bond has been requested by an interested party and the court is satisfied that it is desirable. Bond required by any will may be dispensed with in formal proceedings upon determination by the court that it is not necessary. No bond is required of any personal representative who, pursuant to statute, has deposited cash or collateral with an agency of this state to secure performance of the personal representative’s duties.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-04. (3-604) Bond amount — Security — Procedure — Reduction.

If bond is required and the provisions of the will or order do not specify the amount, unless stated in that person’s application or petition, the person qualifying shall file a statement under oath with the court indicating that person’s best estimate of the value of the personal estate of the decedent and of the income expected from the personal and real estate during the next year, and shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution, as defined in section 30.1-31-02, in a manner that prevents their unauthorized disposition. On petition of the personal representative or another interested person, the court may excuse a requirement of bond, increase or reduce the amount of the bond, release sureties, or permit the substitution of another bond with the same or different sureties.

Source: S.L. 1991, ch. 351, § 2.

30.1-17-05. (3-605) Demand for bond by interested person.

Any person apparently having an interest in the estate worth in excess of one thousand dollars, or any creditor having a claim in excess of one thousand dollars, may make a written demand that a personal representative give bond. The demand must be filed with the court and a copy mailed to the personal representative if appointment and qualification have occurred. Thereupon, bond is required, but the requirement ceases if the person demanding bond ceases to be interested in the estate, or if bond is excused as provided in section 30.1-17-03 or 30.1-17-04. After receiving notice and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of office except as necessary to preserve the estate. Failure of the personal representative to meet a requirement of bond by giving suitable bond within thirty days after receipt of notice is cause for removal and appointment of a successor personal representative.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-06. (3-606) Terms and conditions of bonds.

1. The following requirements and provisions apply to any bond required by this chapter:
   1. Bonds shall name the state of North Dakota as obligee for the benefit of the persons interested in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law.
   2. Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond.
   3. By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the probate court which issued letters to the primary obligor in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any proceeding shall be delivered to the surety or mailed to the surety by registered or certified mail at the surety’s address as listed with the court where the bond is filed and to the surety’s address as then known to the petitioner.
   4. On petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative.
   5. The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
2. No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-07. (3-607) Order restraining personal representative.

1. On petition of any person who appears to have an interest in the estate, the court, by temporary order, may restrain a personal representative from performing specified acts of administration, disbursement, or distribution, or exercise of any powers or discharge of any duties of the personal representative’s office, or make any other order to secure proper performance of the personal representative’s duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.
2. The matter shall be set for hearing within ten days unless the parties otherwise agree. Notice, as the court directs, shall be given to the personal representative and the personal representative’s attorney of record, if any, and to any other parties named defendant in the petition.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-08. (3-608) Termination of appointment — General.

Termination of appointment of a personal representative occurs as indicated in sections 30.1-17-09 through 30.1-17-12. Termination ends the right and power pertaining to the office of personal representative as conferred by this title or any will, except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve the personal representative of the duty to preserve assets subject to the personal representative’s control, to account therefor, and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates the personal representative’s authority to represent the estate in any pending or future proceeding.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-09. (3-609) Termination of appointment — Death or disability.

The death of a personal representative or the appointment of a conservator for the estate of a personal representative terminates the personal representative’s appointment. Until appointment and qualification of a successor or special representative to replace the deceased or protected representative, the representative of the estate of the deceased or protected personal representative, if any, has the duty to protect the estate possessed and being administered by the decedent or ward at the time the decedent’s or ward’s appointment terminates, has the power to perform acts necessary for protection, and shall account for and deliver the estate assets to a successor or special personal representative upon the successor’s or special personal representative’s appointment and qualification.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-10. (3-610) Termination of appointment — Voluntary.

1. An appointment of a personal representative terminates as provided in section 30.1-21-03, one year after the filing of a closing statement.
2. An order closing an estate as provided in section 30.1-21-01 or 30.1-21-02 terminates an appointment of a personal representative.
3. A personal representative may resign the position by filing a written statement of resignation with the court after giving at least fifteen days’ written notice to the persons known to be interested in the estate. If no one applies or petitions for appointment of a successor representative within the time indicated in the notice, the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to the successor representative.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-11. (3-611) Termination of appointment by removal — Cause — Procedure.

1. A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in section 30.1-17-07, after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.
2. Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking the personal representative’s appointment intentionally misrepresented material facts in the proceedings leading to the personal representative’s appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of the office, or has mismanaged the estate or failed to perform any duty pertaining to the office. Unless the decedent’s will directs otherwise, a personal representative appointed at the decedent’s domicile, incident to securing appointment of the personal representative or the personal representative’s nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this state to administer local assets.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-12. (3-612) Termination of appointment — Change of testacy status.

Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy or under a will which is superseded by formal probate of another will, or the vacation of an informal probate of a will subsequent to the appointment of the personal representative thereunder, does not terminate the appointment of the personal representative although the personal representative’s powers may be reduced as provided in section 30.1-15-01. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to appointment under the later assumption concerning testacy. If no request for new appointment is made within thirty days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the assumption concerning testacy, the previously appointed personal representative upon request may be appointed personal representative under the subsequently probated will, or as in intestacy, as the case may be.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Statute dealing with existing intestate administration, upon discovery of will, 65 A.L.R.2d 1201, 1202.

30.1-17-13. (3-613) Successor personal representative.

Chapters 30.1-14 and 30.1-15 govern proceedings for appointment of a personal representative to succeed one whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party, and no notice, process, or claim which was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative. Except as otherwise ordered by the court, the successor personal representative has the powers and duties in respect to the continued administration which the former personal representative would have had if the appointment had not been terminated.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-14. (3-614) Special administrator — Appointment.

A special administrator may be appointed:

1. Informally by the court on the application of any interested person when necessary to protect the estate of a decedent prior to the appointment of a general personal representative or if a prior appointment has been terminated as provided in section 30.1-17-09.
2. In a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration, including its administration in circumstances in which a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Public administrator, see N.D.C.C. ch. 11-21.

Public administrator as ex officio public special administrator, see N.D.C.C. § 11-21-05.

Collateral References.

Advisors to trustee or executor, construction and operation of will or trust provision appointing, 56 A.L.R.3d 1249.

30.1-17-15. (3-615) Special administrator — Who may be appointed.

1. If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named executor in the will shall be appointed if available and qualified.
2. In other cases, any proper person may be appointed special administrator.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-16. (3-616) Special administrator — Appointed informally — Powers and duties.

A special administrator appointed by the court in informal proceedings pursuant to subsection 1 of section 30.1-17-14 has the duty to collect and manage the assets of the estate, to preserve them, to account therefor, and to deliver them to the general personal representative upon the personal representative’s qualification. The special administrator has the power of a personal representative, under this title, necessary to perform the special administrator’s duties.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-17. (3-617) Special administrator — Formal proceedings — Power and duties.

A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative, except as limited in the appointment, and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts, or on other terms as the court may direct.

Source: S.L. 1973, ch. 257, § 1.

30.1-17-18. (3-618) Termination of appointment — Special administrator.

The appointment of a special administrator terminates in accordance with the provisions of the order of appointment or on the appointment of a general personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in sections 30.1-17-08 through 30.1-17-11.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-01. (3-701) Time of accrual of duties and powers.

The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to the decedent’s body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others if the acts would have been proper for a personal representative.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Amount of funeral expenses allowable against decedent’s estate, 4 A.L.R.2d 995.

Validating prior sales of decedent’s property, relation back of letters testamentary or of administration as, 2 A.L.R.3d 1105.

Running of statute of limitations as affected by doctrine of relation back of appointment of administrator, 3 A.L.R.3d 1234.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to executors and administrators, 66 N.D. L. Rev. 823 (1990).

30.1-18-02. (3-702) Priority among different letters.

A person to whom general letters are issued first has exclusive authority under the letters until the appointment is terminated or modified. If, through error, general letters are afterward issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-03. (3-703) General duties — Relation and liability to persons interested in estate — Standing to sue.

1. A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this title, and as expeditiously and efficiently as is consistent with the best interests of the estate. The personal representative shall use the authority conferred upon the personal representative by this title, the terms of the will, if any, and any order in proceedings to which the personal representative is party for the best interests of successors to the estate.
2. A personal representative may not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will authorizes a personal representative to administer and distribute the estate according to its terms. An order of appointment of a personal representative, whether issued in informal or formal proceedings, authorizes the personal representative to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning the personal representative’s appointment or fitness to continue, or a supervised administration proceeding. This section does not affect the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants whose claims have been allowed, the surviving spouse, any minor and dependent children, and any pretermitted child of the decedent as described in this title.
3. Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at the decedent’s death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as the decedent had immediately prior to death.

Source: S.L. 1973, ch. 257, § 1; 1999, ch. 294, § 5; 2007, ch. 549, § 6.

Cross-References.

Representatives bringing action for decedent, time, see N.D.C.C. § 28-01-26.

30.1-18-04. (3-704) Personal representative to proceed without court order — Exception.

A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order, or direction of the court, but may invoke the jurisdiction of the court, in proceedings authorized by this title, to resolve questions concerning the estate or its administration.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-05. (3-705) Duty of personal representative — Information to heirs and devisees.

Not later than thirty days after appointment, every personal representative, except any special administrator, shall give information of the appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any will mentioned in the application for appointment of a personal representative. The information must be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information must include the name and address of the personal representative, indicate that it is being sent to persons who have or may have some interest in the estate being administered, indicate whether bond has been filed, and describe the court where papers relating to the estate are on file. The information must state that the estate is being administered by the personal representative under this title without supervision by the court, but that recipients are entitled to information regarding the administration from the personal representative and may petition the court in any matter relating to the estate, including distribution of assets and expenses of administration. The personal representative’s failure to give this information is a breach of duty to the persons concerned but does not affect the validity of the appointment, the personal representative’s powers, or other duties. A personal representative may inform other persons of the appointment by delivery or ordinary first-class mail.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 6.

30.1-18-06. (3-706) Duty of personal representative — Inventory and appraisement.

1. Within six months after appointment, or nine months after the death of the decedent, whichever is later, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare and file or mail an inventory of property owned by the decedent at the time of the decedent’s death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent’s death, and the type and amount of any encumbrance that may exist with reference to any item.
2. The personal representative may file the original of the inventory with the court and send a copy of the inventory only to interested persons who request it. If the personal representative elects not to file the inventory with the court, the personal representative must mail a copy of the inventory to each of the heirs in an intestate estate, or to each of the devisees if a will has been probated, and to any other interested persons who request it.

Source: S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 8; 1989, ch. 402, § 1.

Cross-References.

Inventory and distribution of avails of life insurance policy or beneficiary certificate, see N.D.C.C. § 26.1-33-40.

Personal representative to value homestead, see N.D.C.C. § 30-16-05.

30.1-18-07. (3-707) Employment of appraisers.

The personal representative may employ a qualified and disinterested appraiser to assist the personal representative in ascertaining the fair market value as of the date of the decedent’s death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items the appraiser appraised.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-08. (3-708) Duty of personal representative — Supplementary inventory.

If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, the personal representative shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent’s death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court if the original inventory was filed, or furnish copies thereof or information thereof to persons interested in the new information.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-09. (3-709) Duty of personal representative — Possession of estate.

Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in the personal representative’s possession. The personal representative may maintain an action to recover possession of property or to determine the title thereto.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Civil action by foreign executor or administrator, see N.D.C.C. § 30.1-24-06.

Estate tax, see N.D.C.C. ch. 57-37.1.

30.1-18-10. (3-710) Power to avoid transfers.

The property liable for the payment of unsecured debts of a decedent includes all property transferred by the decedent by any means which is in law void or voidable as against the decedent’s creditors, and subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Deed, judgment, decree, mortgage, foreclosure, and other transfer made in favor of deceased person, or to estate or executor or administrator of deceased, legalized, see N.D.C.C. § 1-04-10.

30.1-18-11. (3-711) Powers of personal representatives — In general.

Until termination of the personal representative’s appointment, a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-12. (3-712) Improper exercise of power — Breach of fiduciary duty.

If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of the personal representative’s fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in sections 30.1-18-13 and 30.1-18-14.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-13. (3-713) Sale, encumbrance, or transaction involving conflict of interest — Voidable — Exceptions.

Any sale or encumbrance to the personal representative, the personal representative’s spouse, agent, or attorney, or any corporation, limited liability company, or trust in which the personal representative has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless:

1. The will or a contract entered into by the decedent expressly authorized the transaction; or
2. The transaction is approved by the court after notice to interested persons.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 54, § 106.

30.1-18-14. (3-714) Persons dealing with personal representative — Protection.

A person who in good faith either assists a personal representative or deals with the personal representative for value is protected as if the personal representative properly exercised the personal representative’s power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of supervised personal representatives which are endorsed on letters as provided in section 30.1-16-04, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not in substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-15. (3-715) Transactions authorized for personal representatives — Exceptions.

Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the priorities stated in section 30.1-20-02, a personal representative, acting reasonably for the benefit of the interested persons, may properly:

1. Retain assets owned by the decedent pending distribution or liquidation, including those in which the representative is personally interested or which are otherwise improper for trust investment.
2. Receive assets from fiduciaries or other sources.
3. Perform, compromise, or refuse performance of the decedent’s contracts that continue as obligations of the estate, as the personal representative may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may:
   1. Execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser’s note for the sum remaining due secured by a mortgage or deed of trust on the land; or
   2. Deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement.
4. Satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances.
5. If funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including moneys received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments which would be reasonable for use by trustees generally.
6. Acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset.
7. Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing or erect new party walls or buildings.
8. Subdivide, develop, or dedicate land to public use, make or obtain the vacation of plats and adjust boundaries, adjust differences in valuation on exchange or partition by giving or receiving considerations, or dedicate easements to public use without consideration.
9. Enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the period of administration.
10. Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.
11. Abandon property when, in the opinion of the personal representative, it is valueless, or is so encumbered, or is in condition that it is of no benefit to the estate.
12. Vote stocks or other securities in person or by general or limited proxy.
13. Pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims.
14. Hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held.
15. Insure the assets of the estate against damage, loss, and liability and the personal representative against liability as to third persons.
16. Borrow money with or without security to be repaid from the estate assets or otherwise and advance money for the protection of the estate.
17. Effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge, or other lien upon property of another person, the personal representative may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien.
18. Pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate.
19. Sell or exercise stock subscription or conversion rights and consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation, limited liability company, or other business enterprise.
20. Allocate items of income or expense to either estate income or principal, as permitted or provided by law.
21. Employ persons, including attorneys, auditors, investment advisers, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of the personal representative’s administrative duties, and act, without independent investigation, upon their recommendations. Instead of acting personally, the personal representative may employ one or more agents to perform any act of administration, whether or not discretionary.
22. Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of the personal representative’s duties.
23. Sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, credit, or for part cash and part credit, and with or without security for unpaid balances.
24. Continue any unincorporated business or venture in which the decedent was engaged at the time of death:
    1. In the same business form for a period of not more than four months from the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business, including good will;
    2. In the same business form for any additional period of time that may be approved by order of the court in a formal proceeding to which the persons interested in the estate are parties; or
    3. Throughout the period of administration if the business is incorporated by the personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate.
25. Incorporate any business or venture in which the decedent was engaged at the time of death.
26. Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate.
27. Satisfy and settle claims and distribute the estate as provided in this title.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 54, § 106.

Cross-References.

Assignment of mortgage by foreign executor or administrator, see N.D.C.C. § 1-04-07.

Assignment, satisfaction, foreclosure of mortgage, judgment, or other lien by heirs, legatees, foreign administrator, executor, or guardian, see N.D.C.C. § 35-01-25.

Authority of executor and administrator to change boundary of irrigation district, see N.D.C.C. § 61-10-12.

Conveyance made by executor or administrator pursuant to decree of specific performance without entry of order confirming conveyance legalized, see N.D.C.C. § 1-04-19.

Investment in notes or bonds secured by federal housing administrator, see § 6-03-48.

Leasing for oil production, see N.D.C.C. §§ 38-10-02 and 38-10-03.

Property directed by will to be disposed of, duty of executor as to oil, gas, or other minerals, see N.D.C.C. § 38-10-11.

Validation of oil and gas leases made by executor, administrator, or guardian, see N.D.C.C. § 1-04-16.

30.1-18-16. (3-716) Powers and duties of successor personal representative.

A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate as expeditiously as possible, but shall not exercise any power expressly made personal to the executor named in the will.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-17. (3-717) Corepresentatives — When joint action required.

If two or more persons are appointed corepresentatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any corepresentative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a corepresentative has been delegated to act for the others. Persons dealing with a corepresentative, if actually unaware that another has been appointed to serve with the corepresentative or if advised by the personal representative with whom they deal that the representative has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the person with whom they dealt had been the sole personal representative.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-18. (3-718) Powers of surviving personal representative.

Unless the terms of the will otherwise provide, every power exercisable by personal corepresentatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as coexecutors is not appointed, those appointed may exercise all the powers incident to the office.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-19. (3-719) Compensation of personal representative.

A personal representative is entitled to reasonable compensation for the personal representative’s services. If a will provides for compensation of the personal representative and there is no contract with the decedent regarding compensation, the personal representative may renounce the provision before qualifying and be entitled to reasonable compensation. A personal representative also may renounce the personal representative’s right to all or any part of the compensation. A written renunciation of fee may be filed with the court.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-20. (3-720) Expenses in estate litigation.

If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, the personal representative or nominee is entitled to receive from the estate necessary expenses and disbursements, including reasonable attorney’s fees incurred.

Source: S.L. 1973, ch. 257, § 1.

30.1-18-21. (3-721) Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.

After notice to all interested persons, or on petition of an interested person, or on appropriate motion if administration is supervised, the propriety of employment of any person by a personal representative, including any attorney, auditor, investment adviser, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the personal representative for that person’s own services, including services rendered as attorney, may be reviewed by the court. If the amount of attorney’s fees is based upon the value of the decedent’s estate, the fee agreement must be in writing and mailed to all parties who are heirs of the estate pursuant to the last will and testament of the decedent. If the decedent died intestate, notice must be provided to all heirs of the estate in accordance with chapter 30.1-03. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 403, § 1.

30.1-19-01. (3-801) Notice to creditors.

Unless notice has already been given under this section, a personal representative upon appointment may publish a notice to creditors whose identities are not reasonably ascertainable. The notice must be published once a week for three successive weeks in a newspaper of general circulation in the county. If the personal representative elects to publish a notice to creditors then, in addition to publishing the notice to creditors, the personal representative shall mail a copy of the notice to those creditors whose identities are known to the personal representative or are reasonably ascertainable and who have not already filed a claim. The notice must announce the personal representative’s appointment and address and notify creditors of the estate to present their claims within three months after the date of the first publication or mailing of the notice or be forever barred. For the purpose of this section, a reasonably ascertainable creditor includes a creditor who regularly submits billings to the decedent or the decedent’s estate and to whose billings the personal representative has had access.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 298, § 1; 1989, ch. 404, § 1.

30.1-19-02. (3-802) Statutes of limitations.

Unless an estate is insolvent, the personal representative, with the consent of all successors whose interests would be affected, may waive any defense of limitations available to the estate. If the defense is not waived, no claim that was barred by any statute of limitations at the time of the decedent’s death may be allowed or paid. The running of any statute of limitations measured from some other event than death and advertisement and mailing of notice for claims against a decedent is suspended during the three months following the decedent’s death but resumes thereafter as to claims not barred pursuant to the sections which follow. For purposes of any statute of limitations, the proper presentation of a claim under section 30.1-19-04 is equivalent to commencement of a proceeding on the claim.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 17; 1977, ch. 298, § 2; 1989, ch. 404, § 2.

30.1-19-03. (3-803) Limitations on presentation of claims.

1. All claims against a decedent’s estate which arose before the death of the decedent, including claims of the state or any political subdivision, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, the heirs and devisees of the decedent, and nonprobate transferees unless presented as follows:
   1. Within three months after the date of the first publication and mailing of notice to creditors if notice is given in compliance with section 30.1-19-01; provided, claims barred by the nonclaim statute at the decedent’s domicile before the first publication for claims in this state are also barred in this state.
   2. Within three years after the decedent’s death, if notice to creditors has not been published and mailed.
2. All claims against a decedent’s estate which arise at or after the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
   1. A claim based on a contract with the personal representative, within four months after performance by the personal representative is due.
   2. Any other claim, within three months after it arises.
3. Nothing in this section affects or prevents:
   1. Any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate.
   2. To the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which the decedent or personal representative is protected by liability insurance.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 298, § 3; 1989, ch. 404, § 3; 1999, ch. 294, § 6.

Cross-References.

Actions by or against representatives, time, see N.D.C.C. § 28-01-26.

30.1-19-04. (3-804) Manner of presentation of claims.

Claims against a decedent’s estate may be presented as follows:

1. The claimant may deliver or mail to the personal representative and any attorney of record for the estate a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, or may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court. The claim is deemed presented on the first to occur, either receipt of the written statement of claim by the personal representative, or the filing of the claim with the court. If a claim is not yet due, the claimant shall state the date when it will become due. If the claim is contingent or unliquidated, the claimant shall state the nature of the uncertainty. If the claim is secured, the claimant shall describe the security. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation.
2. The claimant may commence a proceeding against the personal representative in any court where the personal representative may be subjected to jurisdiction, to obtain payment of the claimant’s claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim. A presentation of claim is not required in regard to matters claimed in proceedings against the decedent which were pending at the time of death.
3. If a claim is presented under subsection 1, a proceeding on the claim may not be commenced more than sixty days after the personal representative has mailed a notice of disallowance, but, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the sixty-day period, or to avoid injustice, the court, on petition, may order an extension of the sixty-day period, but in no event may the extension run beyond the applicable statute of limitations.

Source: S.L. 1973, ch. 257, § 1; 2013, ch. 249, § 1.

30.1-19-05. (3-805) Classification of claims.

1. If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:
   1. Costs and expenses of administration.
   2. Reasonable funeral expenses.
   3. Debts and taxes with preference under federal law.
   4. Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent.
   5. The decedent’s child support obligations that were due and unpaid before death.
   6. Debts and taxes with preference under other laws of this state.
   7. All other claims.
2. No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.

Source: S.L. 1973, ch. 257, § 1; 1995, ch. 155, § 8.

Cross-References.

Recovery from estate of recipient of medical assistance for needy persons, see N.D.C.C. § 50-24.1-07.

30.1-19-06. (3-806) Allowance of claims.

1. As to claims presented in the manner described in section 30.1-19-04 within the time limit prescribed in section 30.1-19-03, the personal representative may mail a notice to any claimant stating that the claim has been disallowed. If, after allowing or disallowing a claim, the personal representative changes the personal representative’s decision concerning the claim, the personal representative shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred. Every claim which is disallowed, in whole or in part, by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than sixty days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail notice to a claimant of action on the claimant’s claim for sixty days after the time for original presentation of the claim has expired has the effect of a notice of allowance.
2. After allowing a claim, the personal representative may before payment change the allowance to a disallowance in whole or in part, but not after allowance by a court order or judgment or an order directing payment of the claim. The personal representative shall notify the claimant of the change to disallowance, and the disallowed claim is then subject to bar as provided under subsection 1. After disallowing a claim, the personal representative may change a disallowance to an allowance in whole or in part until it is barred under subsection 1 and after it is barred, it may be allowed and paid only if the estate is solvent and all successors whose interests would be affected consent.
3. Upon the petition of the personal representative or of a claimant in a proceeding for the purpose, the court may allow, in whole or in part, any claim or claims presented to the personal representative or filed with the clerk of the court in due time and not barred by subsection 1. Notice in this proceeding must be given to the claimant, the personal representative, and those other persons interested in the estate as the court may direct, by order entered at the time the proceeding is commenced.
4. A judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent’s estate is an allowance of the claim.
5. Unless otherwise provided in any judgment in another court entered against the personal representative, allowed claims bear interest at the legal rate for the period commencing sixty days after the time for original presentation of the claim has expired unless based on a contract making a provision for interest, in which case allowed claims bear interest in accordance with that provision.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 7.

30.1-19-07. (3-807) Payment of claims.

1. Upon the expiration of three months from the date of the first publication and mailing of the notice to creditors, the personal representative shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, family, and support allowances, for claims already presented which have not yet been allowed or whose allowance has been appealed, and for unbarred claims that may yet be presented, including costs and expenses of administration. By petition to the court in a proceeding for the purpose, or by appropriate motion if the administration is supervised, a claimant whose claim has been allowed but not paid as provided herein may secure an order directing the personal representative to pay the claim to the extent that funds of the estate are available for the payment.
2. The personal representative at any time may pay any just claim which has not been barred, with or without formal presentation, but the personal representative is personally liable to any other claimant whose claim is allowed and who is injured by such payment if:
   1. The payment was made before the expiration of the time limit stated in subsection 1 and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or
   2. The payment was made, due to the negligence or willful fault of the personal representative, in such manner as to deprive the injured claimant of the injured claimant’s priority.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 298, § 4; 1989, ch. 404, § 4.

Cross-References.

Exemptions, see ch. 28-22.

Power to avoid transfers and recover property for payment of unsecured debts, see § 30.1-18-10.

Rights in policies of life insurance and annuities exempt from claims of creditors, see § 26.1-33-36.

30.1-19-08. (3-808) Individual liability of personal representative.

1. Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in the personal representative’s fiduciary capacity in the course of administration of the estate unless the personal representative fails to reveal the personal representative’s representative capacity and identify the estate in the contract.
2. A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if the personal representative is personally at fault.
3. Claims based on contracts entered into by a personal representative in the personal representative’s fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration, may be asserted against the estate by proceeding against the personal representative in the personal representative’s fiduciary capacity, whether or not the personal representative is individually liable therefor.
4. Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge or indemnification, or other appropriate proceeding.

Source: S.L. 1973, ch. 257, § 1.

30.1-19-09. (3-809) Secured claims.

Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders the security. Otherwise, payment is upon the basis of one of the following:

1. If the creditor exhausts the security before receiving payment, unless precluded by other law, upon the amount of the claim allowed less the fair value of the security.
2. If the creditor does not have the right to exhaust the security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise, or litigation.

Source: S.L. 1973, ch. 257, § 1.

30.1-19-10. (3-810) Claims not due and contingent or unliquidated claims.

1. If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class.
2. In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:
   1. If the claimant consents, the claimant may be paid the present or agreed value of the claim, taking any uncertainty into account; or
   2. Arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation, may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.

Source: S.L. 1973, ch. 257, § 1.

30.1-19-11. (3-811) Counterclaims.

In allowing a claim the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate, a court shall reduce the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Presentation of claim to executor or administrator as prerequisite of its availability as counterclaim or setoff, 36 A.L.R.3d 693.

30.1-19-12. (3-812) Execution and levies prohibited.

No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges, or liens upon real or personal property in an appropriate proceeding.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Family allowance from decedent’s estate as exempt from attachment, garnishment, execution, and foreclosure, 27 A.L.R.3d 863.

30.1-19-13. (3-813) Compromise of claims.

When a claim against the estate has been presented in any manner, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Claim due estate, power and responsibility of executor or administrator to compromise, 72 A.L.R.2d 191.

Claim against estate, power and responsibility of executor or administrator to compromise, 72 A.L.R.2d 243.

Death: power and responsibility of executor or administrator as to compromise or settlement of action or cause of action for death, 72 A.L.R.2d 285.

Effect of settlement with and acceptance of release from one wrongful death beneficiary upon liability of tortfeasor to other beneficiaries or decedent’s personal representative, 21 A.L.R.4th 275.

30.1-19-14. (3-814) Encumbered assets.

If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance, or convey or transfer the assets to the creditor in satisfaction of the creditor’s lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 18.

30.1-19-15. (3-815) Administration in more than one state — Duty of personal representative.

1. All assets of estates being administered in this state are subject to all claims, allowances, and charges existing or established against the personal representative wherever appointed.
2. If the estate, either in this state or as a whole, is insufficient to cover all family exemptions and allowances determined by the law of the decedent’s domicile, prior charges, and claims, after satisfaction of the exemptions, allowances, and charges, each claimant whose claim has been allowed either in this state or elsewhere in administrations of which the personal representative is aware, is entitled to receive payment of an equal proportion of the claimant’s claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this state, the creditor so benefited is to receive dividends from local assets only upon the balance of the creditor’s claim after deducting the amount of the benefit.
3. In case the family exemptions and allowances, prior charges, and claims of the entire estate exceed the total value of the portions of the estate being administered separately, and this state is not the state of the decedent’s last domicile, the claims allowed in this state shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this state the amount to which they are entitled, local assets shall be marshalled so that each claim allowed in this state is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this state from assets in other jurisdictions.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

What constitutes “estate” of nonresident decedent within statute providing for local ancillary administration where decedent died leaving an estate in jurisdiction, 34 A.L.R.2d 1270.

Right of nonresident surviving spouse or minor children to allowance of property exempt from administration or to family allowance from local estate of nonresident decedent, 51 A.L.R.2d 1026.

30.1-19-16. (3-816) Final distribution to domiciliary representative.

The estate of a nonresident decedent being administered by a personal representative appointed in this state shall, if there is a personal representative of the decedent’s domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless:

1. By virtue of the decedent’s will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of this state without reference to the local law of the decedent’s domicile;
2. The personal representative of this state, after reasonable inquiry, is unaware of the existence or identity of a domiciliary personal representative; or
3. The court orders otherwise in a proceeding for a closing order under section 30.1-21-01 or incident to the closing of a supervised administration.

In other cases, distribution of the estate of a decedent shall be made in the manner provided elsewhere in this title.

Source: S.L. 1973, ch. 257, § 1.

30.1-20-01. (3-901) Successors’ rights if no administration.

In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title to devised property by the probated will. Persons entitled to property by homestead allowance, exemption, or intestacy may establish title thereto by proof of the decedent’s ownership, the decedent’s death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.

Source: S.L. 1973, ch. 257, § 1.

30.1-20-02. (3-902) Distribution — Order in which assets appropriated — Abatement.

1. Except as provided in subsection 2 and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:
   1. Property not disposed of by the will.
   2. Residuary devises.
   3. General devises.
   4. Specific devises.
2. If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection 1, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
3. If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

Source: S.L. 1973, ch. 257, § 1.

30.1-20-03. (3-903) Right of retainer.

The amount of a noncontingent indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor’s interest. But, the successor has the benefit of any defense which would be available to the successor in a direct proceeding for recovery of the debt.

Source: S.L. 1973, ch. 257, § 1.

30.1-20-04. (3-904) Interest on general pecuniary devise.

General pecuniary devises bear interest at the legal rate beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Bequest of bank deposits, stocks, bonds, notes, or other securities as carrying dividends or interest accruing between testator’s death and payment of legacy, 15 A.L.R.3d 1038.

30.1-20-05. (2-517, 3-905) Penalty clause for contest.

A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 334, § 45; 1995, ch. 322, § 27.

Collateral References.

Provision of will for forfeiture in case of contest as applied to contest by one not a beneficiary, 7 A.L.R.2d 1357.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary, 3 A.L.R.5th 590.

30.1-20-06. (3-906) Distribution in kind — Valuation — Method.

1. Unless a contrary intention is indicated by the will, the distributable assets of a decedent’s estate shall be distributed in kind to the extent possible through application of the following provisions:
   1. A specific devisee is entitled to distribution of the thing devised, and a spouse or child who has selected particular assets of an estate as provided in section 30.1-07-01 shall receive the items selected.
   2. Any homestead or family allowance or devise payable in money may be satisfied by value in kind provided:
      1. The person entitled to the payment has not demanded payment in cash.
      2. The property distributed in kind is valued at fair market value as of the date of its distribution.
      3. No residuary devisee has requested that the asset in question remain a part of the residue of the estate.
   3. For the purpose of valuation under subdivision b, securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution, or if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets which do not have readily ascertainable values, a valuation as of a date not more than thirty days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised.
   4. The residuary estate must be distributed in any equitable manner.
2. After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset the distributee is to receive, if not waived earlier in writing, terminates if the distributee fails to object in writing received by the personal representative within thirty days after mailing or delivery of the proposal.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 8.

30.1-20-07. (3-907) Distribution in kind — Evidence.

If distribution in kind is made, the personal representative shall execute an instrument or deed of distribution assigning, transferring, or releasing the assets to the distributee as evidence of the distributee’s title to the property.

Source: S.L. 1973, ch. 257, § 1.

30.1-20-07.1. Deed of distribution — Error in description.

If a deed of distribution contains an error in its description of the property distributed or its ownership, the distributee may petition a court of proper jurisdiction to issue an ex parte order allowing an amendment of the deed of distribution to correct the error.

Source: S.L. 1979, ch. 379, § 1.

30.1-20-08. (3-908) Distribution — Right or title of distributee.

Proof that a distributee has received an instrument or deed of distribution of assets in kind, or payment in distribution, from a personal representative, is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper.

Source: S.L. 1973, ch. 257, § 1.

30.1-20-09. (3-909) Improper distribution — Liability of distributee.

Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if the distributee or claimant has the property. If the distributee or claimant does not have the property, then the distributee or claimant is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by the distributee or claimant.

Source: S.L. 1973, ch. 257, § 1.

30.1-20-10. (3-910) Purchasers from distributees protected.

If property distributed in kind or a security interest therein is acquired for value by a purchaser from or lender to a distributee who has received an instrument or deed of distribution from the personal representative, or is so acquired by a purchaser from or lender to a transferee of the distributee, the purchaser or lender takes title free of any right of an interested person in the estate and incurs no personal liability to the estate, or to any interested person, whether or not the distribution was proper or supported by court order or the authority of the personal representative was terminated before execution of the instrument or deed. This section protects a purchaser from or lender to a distributee who, as personal representative, has executed a deed of distribution to the personal representative, and a purchaser from or lender to any other distributee or the distributee’s transferee. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee are the same person, or whether the authority of the personal representative had terminated before the distribution.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 19.

30.1-20-11. (3-911) Partition for purpose of distribution.

When two or more heirs or devisees are entitled to distribution of undivided interests in any real or personal property of the estate, the personal representative or one or more of the heirs or devisees may petition the district court prior to the formal or informal closing of the estate, to make partition. After notice to the interested heirs or devisees, the district court shall partition the property in the same manner as provided by chapter 32-16. The district court may direct the personal representative to sell any property which cannot be partitioned without prejudice to the owners and which cannot conveniently be allotted to any one party, except if a buyout is agreed upon pursuant to section 32-16-49.

Source: S.L. 1973, ch. 257, § 1; 2019, ch. 278, § 1, effective August 1, 2019.

Cross-References.

Action for partition of real property, generally, see N.D.C.C. ch. 32-16.

30.1-20-12. (3-912) Private agreements among successors to decedent binding on personal representative.

Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to the personal representative’s obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of the personal representative’s office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents’ estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts.

Source: S.L. 1973, ch. 257, § 1.

30.1-20-13. (3-913) Distributions to trustee.

1. Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which it is to be administered provides for registration and that the trustee inform the beneficiaries.
2. If the trust instrument does not excuse the trustee from giving bond, the personal representative may petition the appropriate court to require that the trustee post bond if the personal representative apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves, and the personal representative may withhold distribution until the court has acted.
3. No inference of negligence on the part of the personal representative shall be drawn from the personal representative’s failure to exercise the authority conferred by subsections 1 and 2.

Source: S.L. 1973, ch. 257, § 1; 2007, ch. 549, § 7.

30.1-20-14. (3-914) Disposition of unclaimed assets.

If an heir, devisee, or claimant cannot be found, the personal representative shall distribute the missing person’s share to the missing person’s conservator, if any, otherwise to the unclaimed property administrator under chapter 47-30.2.

Source: S.L. 1973, ch. 257, § 1; 2003, ch. 275, § 1; 2021, ch. 337, § 10, effective July 1, 2021.

Collateral References.

Illegitimate, escheat of estate of, 48 A.L.R.2d 759, 778.

Intestate domiciled or resident in another state, escheat of personal property of, 50 A.L.R.2d 1375.

Duty and liability of executor with respect to locating and noticing legatees, devisees, or heirs, 10 A.L.R.3d 547.

30.1-20-15. (3-915) Distribution to person under disability.

1. A personal representative may discharge the personal representative’s obligation to distribute to any person under legal disability by distributing in a manner expressly provided in the will.
2. Unless contrary to an express provision in the will, the personal representative may discharge the personal representative’s obligation to distribute to a minor or to a person under other disability by distributing to the distributor’s attorney in fact. If the personal representative knows that a conservator has been appointed or that a proceeding for appointment of a conservator is pending, the personal representative is authorized to distribute only to the conservator.
3. If the heir or devisee is under disability other than minority, the personal representative is authorized to distribute to any of the following:
   1. An attorney in fact who has authority under a power of attorney to receive property for that person.
   2. The spouse, parent, or other close relative with whom the person under disability resides, if the distribution is of an amount or value not exceeding ten thousand dollars per year, unless the court authorizes a larger amount or greater value.

Persons receiving money or property for a disabled person are obligated to apply the money or property to the support of that person, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the support of the disabled person. Excess sums must be preserved for future support of the disabled person. The personal representative is not responsible for the proper application of money or property distributed under this subsection.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 401, § 9.

30.1-20-16. (3-916) Apportionment of estate taxes.

1. For purposes of this section:
   1. “Estate” means the gross estate of a decedent as determined for the purpose of federal estate tax and the estate tax payable to this state.
   2. “Fiduciary” means personal representative or trustee.
   3. “Person” means any individual, partnership, association, joint stock company, corporation, limited liability company, government, political subdivision, governmental agency, or local governmental agency.
   4. “Person interested in the estate” means any person entitled to receive, or who has received, from a decedent or by reason of the death of a decedent any property or interest therein included in the decedent’s estate. It includes a personal representative, conservator, and trustee.
   5. “State” means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
   6. “Tax” means the federal estate tax and the additional estate tax imposed by chapter 57-37.1 and interest and penalties imposed in addition to the tax.
2. Unless the will otherwise provides, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent’s will directs a method of apportionment of tax different from the method described in this title, the method described in the will controls.
3. 1. The court in which venue lies for the administration of the estate of a decedent on petition for the purpose may determine the apportionment of the tax.
   2. If the court finds that it is inequitable to apportion interest and penalties in the manner provided in subsection 2 because of special circumstances, it may direct apportionment thereof in the manner it finds equitable.
   3. If the court finds that the assessment of penalties and interest assessed in relation to the tax is due to delay caused by the negligence of the fiduciary, the court may charge the fiduciary with the amount of the assessed penalties and interest.
   4. In any action to recover, from any person interested in the estate, the amount of the tax apportioned to the person in accordance with this title, the determination of the court in respect thereto shall be prima facie correct.
4. 1. The personal representative or other person in possession of the property of the decedent required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution to the person, the amount of tax attributable to the person’s interest. If the property in possession of the personal representative or other person required to pay the tax and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the personal representative or other person required to pay the tax may recover the deficiency from the person interested in the estate. If the property is not in the possession of the personal representative or the other person required to pay the tax, the personal representative or the other person required to pay the tax may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this title.
   2. If property held by the personal representative is distributed prior to final apportionment of the tax, the distributee shall provide a bond or other security for the apportionment liability in the form and amount prescribed by the personal representative.
5. 1. In making an apportionment, allowances shall be made for any exemptions granted, any classification made of persons interested in the estate, and for any deductions and credits allowed by the law imposing the tax.
   2. Any exemption or deduction allowed by reason of the relationship of any person to the decedent or by reason of the purposes of the gift inures to the benefit of the person bearing such relationship or receiving the gift but, if an interest is subject to a prior present interest which is not allowable as a deduction, the tax apportionable against the present interest shall be paid from principal.
   3. Any deduction for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or the decedent’s estate inures to the proportionate benefit of all persons liable to apportionment.
   4. Any credit for inheritance, succession, or estate taxes, or taxes in the nature thereof applicable to property or interests includable in the estate, inures to the benefit of the persons or interests chargeable with the payment thereof to the extent proportionately that the credit reduces the tax.
   5. To the extent that property passing to or in trust for a surviving spouse or any charitable, public, or similar gift or devisee is not an allowable deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property is not included in the computation provided for in subsection 2, and to that extent no apportionment is made against the property. The sentence immediately preceding does not apply to any case if the result would be to deprive the estate of a deduction otherwise allowable under section 2053(d) of the United States Internal Revenue Code of 1954, as amended, relating to deduction for state death taxes on transfers for public, charitable, or religious uses.
6. No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder.
7. Neither the personal representative nor other person required to pay the tax is under any duty to institute any action to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the three months next following final determination of the tax. A personal representative or other person required to pay the tax who institutes the action within a reasonable time after the three months’ period is not subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectible at a time following the death of the decedent but thereafter became uncollectible. If the personal representative or other person required to pay the tax cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be equitably apportioned among the other persons interested in the estate who are subject to apportionment.
8. A personal representative acting in another state or a person required to pay the tax domiciled in another state may institute an action in the courts of this state and may recover a proportionate amount of the federal estate tax, of an estate tax payable to another state, or of a death duty due by a decedent’s estate to another state from a person interested in the estate who is either domiciled in this state or who owns property in this state subject to attachment or execution. For the purposes of the action, the determination of apportionment by the court having jurisdiction of the administration of the decedent’s estate in the other state is prima facie correct.

Source: S.L. 1973, ch. 257, § 1; 1993, ch. 54, § 106.

Cross-References.

Lien for estate taxes, beneficiaries share burden of taxes, see N.D.C.C. § 57-37.1-09.

30.1-21-01. (3-1001) Formal proceedings terminating administration — Testate or intestate — Order of general protection.

1. A personal representative or any interested person may petition for an order of complete settlement of the estate. The personal representative may petition at any time, and any other interested person may petition after one year from the appointment of the original personal representative, except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to determine testacy, if not previously determined, to consider the final account or compel or approve an accounting and distribution, to construe any will or determine heirs and adjudicate the final settlement and distribution of the estate. After notice to all interested persons and hearing the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and, after receiving satisfactory evidence of payment of any estate tax due, directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person.
2. If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under this section, and after notice to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding shall constitute prima facie proof of due execution of any will previously admitted to probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact.

Source: S.L. 1973, ch. 257, § 1; 1975, ch. 290, § 9.

Cross-References.

Limitations on presentation of claims, see N.D.C.C. § 30.1-19-03.

30.1-21-02. (3-1002) Formal proceedings terminating testate administration — Order construing will without adjudicating testacy.

A personal representative administering an estate under an informally probated will or any devisee under an informally probated will may petition for an order of settlement of the estate which will not adjudicate the testacy status of the decedent. The personal representative may petition at any time, and a devisee may petition after one year, from the appointment of the original personal representative, except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to consider the final account or compel or approve an accounting and distribution, to construe the will and adjudicate final settlement and distribution of the estate. After notice to all devisees and the personal representative and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate under the will, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any devisee who is a party to the proceeding and those the devisee represents. If it appears that a part of the estate is intestate, the proceedings shall be dismissed or amendments made to meet the provisions of section 30.1-21-01.

Source: S.L. 1973, ch. 257, § 1.

30.1-21-03. (3-1003) Closing estates — By sworn statement of personal representative.

1. Unless prohibited by order of the court and except for estates being administered in supervised administration proceedings, a personal representative may close an estate by filing with the court a verified statement stating that the personal representative, or a prior personal representative whom the personal representative has succeeded, has:
   1. Fully administered the estate of the decedent by making payment, settlement, or other disposition of all claims that were presented, expenses of administration, and estate, inheritance, and other death taxes, except as specified in the statement, and by distributing the assets of the estate to the persons entitled. If any claims remain undischarged, the statement must state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or the statement must state in detail other arrangements that have been made to accommodate outstanding liabilities.
   2. Sent a copy thereof to all distributees of the estate and to all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred and has furnished a full account in writing of the personal representative’s administration to the distributees whose interests are affected thereby.
2. If no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.

If the personal representative has published and mailed notice to creditors as provided by section 30.1-19-01, the personal representative may not file the verified statement until three months after the date of the first publication and mailing.

Source: S.L. 1973, ch. 257, § 1; 1979, ch. 377, § 2; 1981, ch. 91, § 18; 1989, ch. 404, § 5.

30.1-21-03.1. Estate closing — Procedures.

1. If the personal representative has not filed with the court a verified statement to close the estate, or as part of the supervised administration proceedings in accordance with this chapter, within three years from the date of death of the decedent, any devisee, heir, distributee, or claimant may petition the court, formally or by any informal request, or the court on its own motion may order, that the personal representative and the attorney employed by the personal representative be required to show cause to the court why the estate has not been closed. The court shall order the personal representative and the attorney employed by the personal representative to show cause to the court at a hearing scheduled within ninety days why the estate has not been closed. The court shall serve notice upon all heirs, devisees, claimants, distributees, and beneficiaries of the estate of the order to show cause, the date of the hearing, and of their right to participate in the hearing proceedings.
2. Within twenty days of receipt of the order to show cause, the personal representative or the attorney employed by the personal representative shall provide the court with a report containing a time frame for the anticipated closure of the estate; a detailed explanation as to why the estate has not been closed; and a detailed accounting of all disbursements made by the estate, including specific information as to all fees and other disbursements made to the personal representative, and to any attorney, auditor, investment adviser, or other specialized agent or assistant employed to do work for the estate.
3. After the order to show cause hearing, the court shall issue an order establishing a timetable for the closing of the estate based upon the information provided in the report and the evidence provided during the hearing. The court may award attorney’s fees and costs in favor of a petitioner if the court finds that the personal representative or the attorney employed by the personal representative has failed to show cause why the estate has not been closed within three years from the date of death of the decedent unless extended by the court. The court may file a complaint with the disciplinary board against the attorney.

Source: S.L. 1991, ch. 349, § 1; 1999, ch. 295, § 1.

30.1-21-04. (3-1004) Liability of distributees to claimants.

After assets of an estate have been distributed and subject to section 30.1-21-06, an undischarged claim, not barred, may be prosecuted in a proceeding against one or more distributees. No distributee shall be liable to claimants for amounts received as exempt property, homestead or family allowances, or for amounts in excess of the value of the distributee’s distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who has failed to notify other distributees of the demand made upon the distributee by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against the distributee loses the distributee’s right of contribution against other distributees.

Source: S.L. 1973, ch. 257, § 1; 1977, ch. 295, § 20.

30.1-21-05. (3-1005) Limitations on proceedings against personal representative.

Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six months after the filing of the closing statement. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent’s estate.

Source: S.L. 1973, ch. 257, § 1.

30.1-21-06. (3-1006) Limitations on actions and proceedings against distributees.

Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or unless otherwise barred, the claim of any claimant to recover from a distributee who is liable to pay the claim, and the right of any heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or the value thereof from any distributee is forever barred at the later of:

1. Three years after the decedent’s death.
2. One year after the time of distribution thereof.

This section does not bar an action to recover property or value received as the result of fraud.

Source: S.L. 1973, ch. 257, § 1.

30.1-21-07. (3-1007) Certificate discharging liens securing fiduciary performance.

After the personal representative’s appointment has terminated, the personal representative, the personal representative’s sureties, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the court that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety, but does not preclude action against the personal representative or the surety.

Source: S.L. 1973, ch. 257, § 1.

30.1-21-08. (3-1008) Subsequent administration — Fee.

If other property of the estate is discovered after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, the court, upon petition of any interested person and upon notice as it directs, may appoint the same or a successor personal representative to administer the subsequently discovered estate. Any person filing a petition under this section shall pay to the clerk of district court a filing fee as prescribed in section 27-05.2-03. If a new appointment is made, unless the court orders otherwise, the provisions of this title apply as appropriate, but no claim previously barred may be asserted in the subsequent administration.

Source: S.L. 1973, ch. 257, § 1; 1999, ch. 107, § 5.

Note.

The reference to “section 27-05.2-03” was originally enacted as “section 11-17-04”. Due to the repeal of section 11-17-04 by section 82 of chapter 278, S.L. 1999, the code revisor has made this change.

30.1-22-01. (3-1101) Effect of approval of agreements involving trusts, inalienable interests, or interest of third persons.

A compromise of any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any governing instrument, the rights or interests in the estate of the decedent, of any successor, or the administration of the estate, if approved in a formal proceeding in the court for that purpose, is binding on all the parties thereto, including those unborn, unascertained, or who could not be located. An approved compromise is binding even though it may affect a trust or an inalienable interest. A compromise does not impair the rights of creditors or of taxing authorities who are not parties to it.

Source: S.L. 1973, ch. 257, § 1; 1995, ch. 322, § 24.

Collateral References.

Claim due estate, power and responsibility of executor or administrator to compromise, 72 A.L.R.2d 191.

Claim against estate, power and responsibility of executor or administrator to compromise, 72 A.L.R.2d 243.

Death: power and responsibility of executor or administrator as to compromise or settlement of action or cause of action for death, 72 A.L.R.2d 285.

Testator’s estate, family settlement of, 29 A.L.R.3d 8.

Intestate estate, family settlement of, 29 A.L.R.3d 174.

30.1-22-02. (3-1102) Procedure for securing court approval of compromise.

The procedure for securing court approval of a compromise is as follows:

1. The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents or guardians acting for any minor children having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained.
2. Any interested person, including the personal representative, if any, or a trustee, then may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives.
3. After notice to all interested persons or their representatives, including the personal representative of any estate and all affected trustees, the court, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries under its supervision to execute the agreement. Minor children represented only by their parents or guardians may be bound only if their parents or guardians join with other competent persons in execution of the compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.

Source: S.L. 1973, ch. 257, § 1; 1995, ch. 322, § 25.

30.1-23-01. (3-1201) Collection of personal property by affidavit.

1. Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that:
   1. The value of the entire estate subject to distribution or succession under chapters 30.1-01 through 30.1-23, wherever located, less liens and encumbrances, does not exceed fifty thousand dollars.
   2. Thirty days have elapsed since the death of the decedent.
   3. An application or petition for the appointment of a personal representative is not pending or has not been granted in any jurisdiction.
   4. The claiming successor is entitled to payment or delivery of the property.
2. A transfer agent of any security shall change the registered ownership on the books of a corporation or limited liability company from the decedent to the successor upon the presentation of an affidavit as provided in subsection 1.

Source: S.L. 1973, ch. 257, § 1; 1979, ch. 380, § 1; 1987, ch. 397, § 1; 1993, ch. 54, § 106; 2005, ch. 290, § 1.

30.1-23-02. (3-1202) Effect of affidavit.

The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if the person dealt with a personal representative of the decedent. The person is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.

Source: S.L. 1973, ch. 257, § 1.

30.1-23-03. (3-1203) Small estates — Summary administrative procedure.

If it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed the homestead as defined in section 47-18-01, plus exempt property pursuant to section 30.1-07-01, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in section 30.1-23-04.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Estates of deceased members of veterans’ homes, see N.D.C.C. §§ 37-15-16 to 37-15-18.

Workforce Safety and Insurance may pay spouse of deceased claimant without probate proceeding, see N.D.C.C. § 65-05-27.

30.1-23-04. (3-1204) Small estate — Closing by sworn statement of personal representative.

1. Unless prohibited by order of the court and except for estates being administered by supervised personal representatives, a personal representative may close an estate administered under the summary procedures of section 30.1-23-03 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that:
   1. To the best knowledge of the personal representative, the value of the entire estate, less liens and encumbrances, did not exceed the homestead as defined in section 47-18-01, plus exempt property, pursuant to section 30.1-07-01, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable, necessary medical and hospital expenses of the last illness of the decedent.
   2. The personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto.
   3. The personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred and has furnished a full account in writing of the personal representative’s administration to the distributees whose interests are affected.
2. If no actions or proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.
3. A closing statement filed under this section has the same effect as one filed under section 30.1-21-03.

Source: S.L. 1973, ch. 257, § 1.

30.1-23-05. Will searches, burial documents procurement, and inventory of contents.

1. Upon being furnished with satisfactory proof of death of a sole lessee or the last surviving co-lessee of a safe deposit box, the safe deposit company may open the box for an individual who appears in person and furnishes an affidavit stating the following:
   1. The box may contain the will or deed to a burial lot or a document containing instructions for the burial of the lessee or that the box may contain property belonging to the estate of the lessee;
   2. The individual is an interested person and wishes to open the box:
      1. To conduct a will search;
      2. To obtain a document required to facilitate the lessee’s wishes regarding body, funeral, or burial arrangements; or
      3. To make an inventory of the contents of the box; and
   3. There has been no application for or appointment of a personal representative or administrator for the decedent’s estate.
2. The safe deposit company may not open the box under this section if it has received a copy of letters from the representative of the deceased lessee’s estate or other applicable court order.
3. The safe deposit company need not open the box if the lessee’s key or combination is not available.
4. For purposes of this section, the term “interested person” means:
   1. A person named as personal representative in a purported will of the lessee;
   2. A person who immediately prior to the death of the lessee had the right of access to the box;
   3. The surviving spouse of the lessee;
   4. A devisee of the lessee;
   5. An heir of the lessee; or
   6. A person designated by the lessee in a writing acceptable to the safe deposit company which is filed with the safe deposit company before death.
5. The safe deposit company need not ascertain the truth of any statement in the affidavit required to be furnished under this section, and when acting in reliance upon an affidavit, it is discharged as if it dealt with the personal representative of the lessee. The safe deposit company is not responsible for the adequacy of the description of any property included in an inventory of the contents of a safe deposit box, nor for conversion of the property in connection with actions performed under this section, except for conversion by intentional acts of the company or its employees, directors, officers, or agents. If the safe deposit company is not satisfied that the requirements of this section have been met, it may decline to open the box.
6. No contents of a box other than a will and a document required to facilitate the lessee’s wishes regarding body, funeral, or burial arrangements may be removed pursuant to this section.

Source: S.L. 1999, ch. 296, § 1.

30.1-24-01. (4-101) Definitions.

In chapters 30.1-24 and 30.1-25:

1. “Local administration” means administration by a personal representative appointed in this state pursuant to appointment proceedings described in chapters 30.1-12 through 30.1-23.
2. “Local personal representative” includes any personal representative appointed in this state pursuant to appointment proceedings described in chapters 30.1-12 through 30.1-23 and excludes foreign personal representatives who acquire the power of a local personal representative pursuant to section 30.1-24-06.
3. “Resident creditor” means a person domiciled in, or doing business in, this state, who is, or could be, a claimant against an estate of a nonresident decedent.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

What constitutes “estate” of nonresident decedent within statute providing for local ancillary administration where decedent died leaving an estate in jurisdiction, 34 A.L.R.2d 1270.

Stock owned by estate or ward, right of foreign personal representative or guardian to vote, 41 A.L.R.2d 1082.

Family allowance: right of nonresident surviving spouse or minor children to allowance of property exempt from administration or to family allowance from local estate of nonresident decedent, 51 A.L.R.2d 1026.

Action for death under foreign statute providing for action by personal representative, capacity of local or foreign personal representative to maintain, 52 A.L.R.2d 1016.

Action for death under statute of forum providing for action by personal representative, capacity of foreign domiciliary or of ancillary personal representative to maintain, 52 A.L.R.2d 1048.

Equity actions: applications of rule permitting courts to exercise jurisdiction over equity actions against foreign personal representatives where there are assets within forum, 53 A.L.R.2d 323.

Isolated acts: state statutes or rules of court conferring in personam jurisdiction over nonresidents on the basis of isolated acts or transactions within state as applicable to personal representative of deceased nonresident, 19 A.L.R.3d 171.

30.1-24-02. (4-201) Payment of debt and delivery of property to domiciliary foreign personal representative without local administration.

At any time after the expiration of sixty days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock, or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock, or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of the personal representative’s appointment and an affidavit made by or on behalf of the personal representative stating:

1. The date of the death of the nonresident decedent.
2. That no local administration, or application, or petition therefor, is pending in this state.
3. That the domiciliary foreign personal representative is entitled to payment or delivery.

Source: S.L. 1973 ch. 257, § 1.

30.1-24-03. (4-202) Payment or delivery discharges.

Payment or delivery made in good faith on the basis of the proof of authority and affidavit releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.

Source: S.L. 1973, ch. 257, § 1.

30.1-24-04. (4-203) Resident creditor notice.

Payment or delivery under section 30.1-24-02 may not be made if a resident creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.

Source: S.L. 1973, ch. 257, § 1.

30.1-24-05. (4-204) Proof of authority — Bond.

If no local administration or application or petition for local administration is pending in this state, a domiciliary foreign personal representative may file with a court in this state, in a county in which property belonging to the decedent is located, authenticated or certified copies of the person’s appointment and of any official bond the person has given, and the court shall enter an order establishing the filing of the copies.

Source: S.L. 1973, ch. 257, § 1; 1995, ch. 323, § 1; 2009, ch. 284, § 1.

30.1-24-06. (4-205) Powers.

A domiciliary foreign personal representative who has complied with section 30.1-24-05 may exercise, as to assets in this state, all powers of a local personal representative and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Validation of foreclosure by foreign executor, administrator, or guardian, see N.D.C.C. § 1-05-04.

30.1-24-07. (4-206) Power of representatives in transition.

The power of a domiciliary foreign personal representative under section 30.1-24-02 or 30.1-24-06 shall be exercised only if there is no administration or application therefor pending in this state. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under section 30.1-24-06, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed that person’s position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for the foreign personal representative in any action or proceedings in this state.

Source: S.L. 1973, ch. 257, § 1.

30.1-24-08. (4-207) Ancillary and other local administrations — Provisions governing.

In respect to a nonresident decedent, the provisions of chapters 30.1-12 through 30.1-23 of this title govern:

1. Proceedings, if any, in a court of this state for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate.
2. The status, powers, duties, and liabilities of any local personal representative and the rights of claimants, purchasers, distributees, and others in regard to a local administration.

Source: S.L. 1973, ch. 257, § 1.

30.1-25-01. (4-301) Jurisdiction by act of foreign personal representative.

A foreign personal representative submits personally to the jurisdiction of the courts of this state in any proceeding relating to the estate by:

1. Filing authenticated copies of the foreign personal representative’s appointment as provided in section 30.1-24-05;
2. Receiving payment of money or taking delivery of personal property under section 30.1-24-02; or
3. Doing any act as a personal representative in this state which would have given the state jurisdiction over the foreign personal representative as an individual.

Jurisdiction under subsection 2 is limited to the money or value of personal property collected.

Source: S.L. 1973, ch. 257, § 1.

Collateral References.

Action for death under statute of forum providing for action by personal representative, capacity of foreign domiciliary or of ancillary personal representative to maintain, 52 A.L.R.2d 1048.

Equity actions: applications of rule permitting courts to exercise jurisdiction over equity actions against foreign personal representatives where there are assets within form, 53 A.L.R.2d 323.

Isolated acts: state statutes or rules of court conferring in personam jurisdiction over nonresidents on the basis of isolated acts or transactions within state as applicable to personal representative of deceased nonresident, 19 A.L.R.3d 171.

30.1-25-02. (4-302) Jurisdiction by act of decedent.

In addition to jurisdiction conferred by section 30.1-25-01, a foreign personal representative is subject to the jurisdiction of the courts of this state to the same extent that the decedent was subject to jurisdiction immediately prior to death.

Source: S.L. 1973, ch. 257, § 1.

30.1-25-03. (4-303) Service on foreign personal representative.

1. Service of process may be made upon the foreign personal representative by certified mail, addressed to the foreign personal representative’s last reasonably ascertainable address, requesting a return receipt signed by the addressee only. Notice by ordinary first-class mail is sufficient if certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this state on either the foreign personal representative or the decedent immediately prior to death.
2. If service is made upon a foreign personal representative as provided in subsection 1, the foreign personal representative shall be allowed at least thirty days within which to appear or respond.

Source: S.L. 1973, ch. 257, § 1.

30.1-25-04. (4-401) Effect of adjudication for or against personal representative.

An adjudication rendered in any jurisdiction in favor of or against any personal representative of the estate is as binding on the local personal representative as if the local personal representative were a party to the adjudication.

Source: S.L. 1973 ch. 257, § 1.

30.1-26-01. (5-101) Definitions and use of terms.

Unless otherwise apparent from the context, in this title:

1. “Alternative resource plan” means a plan that provides an alternative to guardianship, using available support services and arrangements which are acceptable to the alleged incapacitated person. The plan may include the use of providers of service such as visiting nurses, homemakers, home health aides, personal care attendants, adult day care and multipurpose senior citizen centers; home and community-based care, human service zones, and developmental disability services; powers of attorney, representative and protective payees; and licensed congregate care facilities.
2. “Incapacitated person” means any adult person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, or chemical dependency to the extent that the person lacks capacity to make or communicate responsible decisions concerning that person’s matters of residence, education, medical treatment, legal affairs, vocation, finance, or other matters, or which incapacity endangers the person’s health or safety.
3. “Least restrictive form of intervention” means that the guardianship imposed on the ward must compensate for only those limitations necessary to provide the needed care and services, and that the ward must enjoy the greatest amount of personal freedom and civil liberties consistent with the ward’s mental and physical limitations.
4. A “protected person” is a minor or other person for whom a conservator or limited conservator has been appointed or other protective order has been made.
5. A “protective proceeding” is a proceeding under the provisions of section 30.1-29-01 to determine that a person cannot effectively manage or apply the person’s estate to necessary ends, either because the person lacks the ability or is otherwise inconvenienced, or because the person is a minor, and to secure administration of the person’s estate by a conservator or other appropriate relief.
6. A “ward” is a person for whom a guardian or limited guardian has been appointed. A “minor ward” is a minor for whom a guardian has been appointed solely because of minority.

Source: S.L. 1973, ch. 257, § 1; 1985, ch. 369, § 3; 1989, ch. 405, § 1; 2019, ch. 391, § 42, effective January 1, 2020.

Cross-References.

Age of majority, see N.D.C.C. §§ 14-10-01, 30.1-01-06.

30.1-26-02. (5-102) Jurisdiction of subject matter — Consolidation of proceedings.

The court has jurisdiction over protective proceedings and guardianship proceedings.

Source: S.L. 1973, ch. 257, § 1; 1975 ch. 290, § 10.

Cross-References.

Concurrent jurisdiction, see N.D.C.C. § 30.1-27-11.

“Court” defined, see N.D.C.C. § 30.1-01-06.

Collateral References.

Function, power, and discretion of court as affected by testamentary appointment of guardian of minor, 67 A.L.R.2d 803.

30.1-26-03. (5-103) Facility of payment or delivery.

Any person under a duty to pay or deliver money or personal property to a minor may perform this duty, in amounts not exceeding five thousand dollars per annum, by paying or delivering the money or property to:

1. The minor, if the minor is married;
2. Any person having the care and custody of the minor with whom the minor resides;
3. A guardian of the minor; or
4. A financial institution incident to a deposit in a federally insured savings account in the sole name of the minor and giving notice of the deposit to the minor.

This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor are pending. The persons, other than the minor or any financial institution under subsection 4, receiving money or property for a minor, are obligated to apply the money to the support and education of the minor, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor’s support. Any excess sums shall be preserved for future support of the minor and any balance not so used and any property received for the minor must be turned over to the minor when the minor attains majority. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application thereof.

Source: S.L. 1973, ch. 257, § 1.

Cross-References.

Action for partition of real property, payment of infant’s share of proceeds of sale, see N.D.C.C. § 32-16-42.

30.1-26-04. (5-104) Delegation of powers by parent or guardian.

A parent or a guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward.

Source: S.L. 1973, ch. 257, § 1.

30.1-27-01. (5-201) Status of guardian of minor — General.

A person becomes a guardian of a minor under this chapter by acceptance of a testamentary appointment and approval by the court. The guardianship status continues until terminated, without regard to the location of the guardian and minor ward.

Source: S.L. 1973, ch. 257, § 1; 2019, ch. 274, § 1, effective August 1, 2019.

Cross-References.

Duties and powers of public administrator, see N.D.C.C. § 11-21-05.

Collateral References.

De facto guardian: guardian de facto or de son tort of minor, 25 A.L.R.2d 752.

Law Reviews.

A Study of Guardianship in North Dakota, 60 N.D. L. Rev. 45 (1984).

30.1-27-02. (5-202) Testamentary appointment of guardian of minor.

The parent of a minor may appoint by will a guardian of an unmarried minor. A testamentary appointment becomes effective upon filing the guardian’s acceptance in the court in which the will is probated and remains effective upon approval by the court either after or without a hearing, if, before acceptance, both parents are dead or the surviving parent’s rights have been terminated by prior court order. If both parents are dead, an effective appointment by the parent who died later has priority. This state recognizes a testamentary appointment effected by filing the guardian’s acceptance under a will probated in another state which is the testator’s domicile and upon approval by the court either after or without a hearing. Upon acceptance of appointment, written notice of acceptance must be given by the guardian to the minor and to the person having the minor’s care or to the minor’s nearest adult relative under section 27-20.3-02. Within forty-five days of the filing of acceptance, the testamentary guardian must file with the court a criminal history record check report and affidavit stating whether the proposed guardian has been investigated for offenses related to theft, fraud, or the abuse, neglect, or exploitation of an adult or child and shall provide a release authorizing access to any record information maintained by an agency in this or another state or a federal agency.

Source: S.L. 1973, ch. 257, § 1; 1981, ch. 348, § 1; 2019, ch. 274, § 2, effective August 1, 2019; 2021, ch. 245, § 31, effective July 1, 2021.

Cross-References.

Guardian ad litem appointed by juvenile court, see N.D.C.C. § 27-20-48.

Guardians ad litem, see N.D.C.C. ch. 28-03.

Public administrator as ex officio guardian, see N.D.C.C. § 11-21-05.

Collateral References.

Domicile of infant on death of both parents; doctrine of natural guardianship, 32 A.L.R.2d 863.

30.1-27-03. (5-203) Objection by minor of fourteen or older to testamentary appointment. [Repealed]

Source: S.L. 1973, ch. 257, § 1; repealed by 2019, ch. 274, § 9, effective August 1, 2019.

30.1-27-04. (5-204) Court appointment of guardian of minor — Conditions for appointment. [Repealed]

Source: S.L. 1973, ch. 257, § 1; repealed by 2019, ch. 274, § 9, effective August 1, 2019.

30.1-27-05. (5-205) Jurisdiction and venue.

1. The district court where the will is probated has exclusive jurisdiction over the following procedures that are governed by this chapter:
   1. To approve the acceptance of a testamentary appointment of a guardian; and
   2. To transfer a case to juvenile court in the event of an objection to the testamentary appointment under section 30.1-27-07.
2. The juvenile court under chapter 27-20.1 has exclusive original jurisdiction over proceedings to consider objections to the testamentary appointment under section 30.1-27-07 and over the court appointment of a guardian of a minor. Any person interested in the welfare of a minor may petition the juvenile court for the appointment of a guardian under section 27-20.1-05 in the following situations:
   1. If there is a living parent of the minor, known or unknown;
   2. If the testamentary guardian fails to accept appointment as guardian within sixty days after the death of the minor’s last living parent;
   3. If both parents are dead or the surviving parent’s rights have been terminated by prior court order, but there has been no appointment of a guardian for the minor by will; or
   4. If a guardianship of a minor is sought for any other reason.

Source: S.L. 1973, ch. 257, § 1; 2019, ch. 274, § 3, effective August 1, 2019.

30.1-27-06. (5-206) Court appointment of guardian ad litem — Approval of acceptance of testamentary appointment.

1. Upon the filing of an acceptance of a testamentary appointment, the court shall appoint a guardian ad litem promptly. The guardian ad litem fees must be paid from the estate of the deceased parent, if available.
2. The duties of the guardian ad litem include:
   1. Personally interviewing the minor, the testamentary guardian, and other persons interested in the welfare of the minor;
   2. Explaining the guardianship proceeding to the minor in the language, mode of communication, and terms that the minor is most likely to understand, including the nature and consequences of the proceeding, the rights to which the minor is entitled, and the available legal options, including the right to retain an attorney to represent the minor;
   3. Advocating for the best interests of the minor consistent with section 14-09-06.2. The appointed guardian ad litem may not represent the minor in a legal capacity;
   4. Consulting juvenile court and other agency records to determine whether the testamentary guardian has a criminal history of abuse, neglect, exploitation, and review of the criminal history records. The guardian ad litem may access confidential juvenile court records and other confidential agency records in the exercise of the guardian ad litem’s official duties;
   5. Submitting a written report to the court within sixty days of the guardian ad litem’s appointment containing the guardian ad litem’s findings on whether the appointment of the testamentary guardian is in the best interests of the child;
   6. Notifying the court if the minor objects to the appointment of the testamentary guardian; and
   7. If the guardian ad litem’s report states the guardian ad litem believes the appointment of the testamentary guardian is contrary to the best interests of the minor, the case must be transferred to juvenile court.
3. The guardian ad litem shall serve a copy of the report on the minor if the minor is fourteen years of age or older, the testamentary guardian, the person having the minor’s care or the minor’s nearest adult relative under section 27-20.3-02, and the personal representative of the deceased parent’s estate.
4. After reviewing the guardian ad litem’s report, the court may approve the acceptance of the testamentary appointment without a hearing if no objection is raised by the minor, the guardian ad litem, or any other person within fourteen days of the filing of the report of the guardian ad litem.
5. The appointment of the guardian ad litem terminates immediately after the approval of the acceptance or upon transfer of the case to juvenile court.
6. Upon the court’s approval of the guardian’s acceptance of the appointment, the court shall issue letters of guardianship. The letters of guardianship must include:
   1. The name, address, and telephone number of the guardian;
   2. The full name of the minor;
   3. Any limitations on the guardian’s authority to make decisions on behalf of the minor;
   4. The expiration date of the appointment; and
   5. The date by which the guardian must file the annual report required under section 27-20.1-15.
7. A written report prepared and submitted under this section is closed to the public and is not open to inspection except by the court, parties to the proceeding or the parties’ counsel, other persons for those purposes as the court may order for good cause, and others authorized by court rule.
8. Medical, psychological, or other treatment information protected by federal law or regulation and any financial account numbers related to a child are confidential and may not be disclosed except to parties to the proceeding, their counsel, and others authorized by court rule. The court may permit access by other persons for good cause.

Source: S.L. 1973, ch. 257, § 1; 2019, ch. 274, § 4, effective August 1, 2019; 2021, ch. 245, § 32, effective July 1, 2021.

30.1-27-07. (5-207) Objection to the appointment of the testamentary guardian of minor — Procedure.

1. Any person interested in the welfare of a minor subject to a testamentary appointment of a guardian, including the minor, may object to the appointment of the testamentary guardian as contrary to the best interests of the minor within fourteen days of the filing of the report of the guardian ad litem.
2. An objection must contain a statement alleging specific facts that demonstrate the appointment of the testamentary guardian is contrary to the best interests of the minor.
3. Upon filing of the objection or on the court’s own motion, the court immediately shall transfer the case to the juvenile court in the county where the original probate matter was filed.

Source: S.L. 1973, ch. 257, § 1; 2019, ch. 274, § 5, effective August 1, 2019.

30.1-27-08. (5-208) Acceptance of appointment.

By accepting a testamentary appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person.

Source: S.L. 1973, ch. 257, § 1; 2019, ch. 274, § 6, effective August 1, 2019.

Collateral References.

Service of process: construction and effect of provision for service of process against minor on a parent, guardian, or other designated person, 92 A.L.R.2d 1336.

30.1-27-09. (5-209) Powers and duties of guardian of minor.

The powers and duties of a guardian of a minor under this chapter are defined under section 27-20.1-15.

Source: S.L. 1973, ch. 257, § 1; 2005, ch. 291, § 1; 2019, ch. 274, § 7, effective August 1, 2019.

Cross-References.

Assignment of mortgage by foreign guardian, see N.D.C.C. § 1-04-07.

Authority of guardian to change boundary of irrigation district, see N.D.C.C. § 61-10-12.

Bond of personal representative, see N.D.C.C. §§ 30.1-17-03 to 30.1-17-07.

Guardian may invest in notes or bonds secured by federal housing administration, see N.D.C.C. § 6-03-48.

Mineral or oil rights in lands of estate, sale or lease, see N.D.C.C. § 38-10-02.

30.1-27-10. (5-210) Termination of appointment of guardian — General. [Repealed]

Source: S.L. 1973, ch. 257, § 1; repealed by 2019, ch. 274, § 9, effective August 1, 2019.

30.1-27-11. (5-211) Proceedings subsequent to approval or findings — Transfer to juvenile court.

1. Upon approval of the guardian’s acceptance of the appointment of the guardian of a minor and issuance of the letters of guardianship, the court shall transfer the guardianship file to the juvenile court where the minor resides.
2. The juvenile court under section 27-20.1-02 has exclusive jurisdiction for any filings or proceedings subsequent to approval and issuance of the letters of guardianship.

Source: S.L. 1973, ch. 257, § 1; 2019, ch. 274, § 8, effective August 1, 2019.

Collateral References.

Function, power, and discretion of court as affected by testamentary appointment of guardian of minor, 67 A.L.R.2d 803.

30.1-27-12. (5-212) Resignation or removal proceedings. [Repealed]

Source: S.L. 1973, ch. 257, § 1; repealed by 2019, ch. 274, § 9, effective August 1, 2019.

30.1-28-01. (5-301) Testamentary appointment of guardian for incapacitated person.

1. The guardian spouse or guardian parent of an adjudicated incapacitated person may, by will, appoint a successor guardian of the incapacitated person. A testamentary appointment by a guardian spouse or guardian parent becomes effective when, after having given seven days’ prior written notice of intention to do so to the incapacitated person and to the person caring for the incapacitated person or to the nearest adult relative of the incapacitated person, the successor guardian files acceptance of appointment in the court in which the will is informally or formally probated.
2. This state shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator’s domicile in another state.
3. On the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding sections of this chapter.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 405, § 2.

Cross-References.

“Incapacitated person” defined, see N.D.C.C. § 30.1-26-01.

Public administrator as ex officio guardian, see N.D.C.C. § 11-21-05.

Law Reviews.

A Study of Guardianship in North Dakota, 60 N.D. L. Rev. 45 (1984).

North Dakota Handbook for Guardians Ad Litem in Actions for Adjudication of Incapacity, 66 N.D. L. Rev. 45 (1990).

30.1-28-02. (5-302) Venue.

The venue for guardianship proceedings for a proposed ward is in the place where the proposed ward resides or is present and expected to remain during the pendency of the proceedings. Notwithstanding section 30.1-02-03, the proposed ward may demand change of venue to either the county of residence or the county where the proposed ward is present. The court shall grant the demand if it is filed and served upon the petitioner more than three days before the hearing. If the demand is filed within three days of the hearing, the court may grant the demand upon good cause shown.

Source: S.L. 1973, ch. 257, § 1; 1983, ch. 82, § 65; 1989, ch. 405, § 3.

30.1-28-03. (5-303) Procedure for court appointment of a guardian of an incapacitated person.

1. Any person interested in the welfare of an allegedly incapacitated person may petition for the appointment of a guardian. No filing fee under this or any other section may be required when a petition for guardianship of an incapacitated person is filed by a member of the individual treatment plan team for the alleged incapacitated person or by any state employee in the performance of official duties.
2. The petition for appointment of a guardian must state:
   1. The name, address, and corporate or agency status of the petitioner, and its connection with or relationship to the proposed ward;
   2. The name, age, and address of the proposed ward;
   3. The name and address of any person or institution having care or custody over the proposed ward;
   4. The names and addresses of the spouse, parents, and adult children or, if none, any adult siblings and any adult with whom the proposed ward resides in a private residence, or, if none, the nearest adult relative;
   5. A brief description of and the approximate value of the real and personal property and income of the proposed ward, so far as they are known to the petitioner;
   6. The extent of guardianship authority sought, including full authority, limited authority, or no authority in each area of residential, educational, medical, legal, vocational, and financial decisionmaking unless the petitioner is undecided on the extent of authority in any area, in which case the petition must state the specific areas in which the authority is sought;
   7. The occupation and qualifications of the proposed guardian;
   8. The name and address of the attorney, if known, who most recently represented the proposed ward;
   9. A statement alleging specific facts establishing the necessity for the appointment of a guardian;
   10. The name and address of any current conservator appointed for the proposed ward;
   11. The name and address of any person designated as an attorney in fact or agent in a power of attorney or as an agent in a health care directive;
   12. The name and address of any representative payee for the proposed ward;
   13. That less intrusive alternatives to guardianship have been considered;
   14. In the form of an attached recent statement, the physical, mental, and emotional limitations of the proposed ward from an expert examiner, if available; and
   15. Whether the petition seeks to restrict any of the following rights:
       1. To vote;
       2. To seek to change marital status; or
       3. To obtain or retain a motor vehicle operator’s license.
3. Upon the filing of a petition, the court promptly shall set a date for hearing on the issues of incapacity, appoint an attorney to act as guardian ad litem, appoint an expert examiner to examine the proposed ward, and appoint a visitor to interview the proposed guardian and the proposed ward. The proposed guardian shall attend the hearing on the petition unless excused by the court for good cause.
4. The duties of the guardian ad litem include:
   1. Personally interviewing the proposed ward;
   2. Explaining the guardianship proceeding to the proposed ward in the language, mode of communication, and terms that the proposed ward is most likely to understand, including the nature and possible consequences of the proceeding, the right to which the proposed ward is entitled, and the legal options that are available, including the right to retain an attorney to represent the proposed ward;
   3. Advocating for the best interests of the proposed ward. The appointed attorney serving as legal guardian ad litem may not represent the proposed ward or ward in a legal capacity;
   4. Submitting a written report to the court containing the guardian ad litem’s response to the petition; and
   5. Reviewing the visitor’s written report submitted in accordance with subdivision h and i of subsection 6 and discussing the report with the proposed ward.
5. The expert examiner shall examine the proposed ward and submit a written report to the court. The written report must contain:
   1. A description of the nature and degree of any current incapacity or disability, including the medical or psychological history, if reasonably available;
   2. A medical prognosis or psychological evaluation specifying the estimated severity and duration of any current incapacity or disability;
   3. A statement as to how or in what manner any underlying condition of physical or mental health affects the proposed ward’s ability to provide for personal needs; and
   4. A statement as to whether any current medication affects the demeanor of the proposed ward or the ability of the proposed ward to participate fully in any court proceeding or in any other procedure required by the court or by court rule.
6. The visitor shall have the following duties:
   1. To meet, interview, and consult with the proposed ward regarding the guardianship proceeding, including explaining the purpose for the interview in a manner the proposed ward can reasonably be expected to understand.
   2. To ascertain the proposed ward’s views concerning the proposed guardian, the powers and duties of the proposed guardian, the proposed guardianship, and the scope and duration thereof.
   3. To interview the person seeking appointment as guardian.
   4. To interview other persons interested in the welfare of the proposed ward.
   5. To visit the proposed ward’s present place of residence.
   6. To discuss an alternative resource plan with the proposed ward, if appropriate.
   7. To obtain other relevant information as directed by the court.
   8. To submit a written report to the court.
   9. The visitor’s written report must contain:
      1. A description of the nature and degree of any current impairment of the proposed ward’s understanding or capacity to make or communicate decisions;
      2. A statement of the qualifications and appropriateness of the proposed guardian and a recommendation regarding whether the proposed guardian should be appointed;
      3. If the visitor recommends the proposed guardian should not be appointed, a recommendation regarding an alternative individual or entity that should be appointed as guardian;
      4. Recommendations, if any, on the powers to be granted to the proposed guardian, including an evaluation of the proposed ward’s capacity to perform the functions enumerated under subsections 3 and 4 of section 30.1-28-04; and
      5. An assessment of the capacity of the proposed ward to perform the activities of daily living.
7. In determining whether appointment of a guardian is appropriate, the court shall consider the reports ordered by the court under this section from a guardian ad litem, visitor, and an expert examiner. The court, guardian ad litem, petitioner, or proposed ward may subpoena the individual who prepared and submitted the report to appear, testify, and be cross-examined.
8. The proposed ward must be present at the hearing in person, unless good cause is shown for the absence. Good cause does not consist only of the physical difficulty of the proposed ward to attend the hearing. The proposed ward has the right to present evidence, and to cross-examine witnesses, including the court-appointed expert examiner and the visitor. The issue may be determined at a closed hearing if the proposed ward or the proposed ward’s counsel so requests.
9. The court shall take all necessary steps to make the courts and court proceedings accessible and understandable to impaired persons. Accordingly, the court may convene temporarily, or for the entire proceeding, at any other location if it is in the best interest of the proposed ward.
10. If the court approves a visitor, lawyer, expert examiner, guardian, or emergency guardian appointed in a guardianship proceeding, that person may receive reasonable compensation from the ward’s estate if the compensation will not unreasonably jeopardize the ward’s well-being.

Source: S.L. 1973, ch. 257, § 1; 1983, ch. 313, § 6; 1985, ch. 336, § 10; 1985, ch. 369, § 4; 1989, ch. 405, § 4; 1999, ch. 297, § 1; 2015, ch. 240, § 1, effective August 1, 2015; 2017, ch. 230, § 2, effective August 1, 2017.

Cross-References.

Guardians ad litem, see N.D.C.C. ch. 28-03.

30.1-28-03.1. Confidentiality — Reports — Personal information.

1. A written report prepared and submitted under subsection 5 or 6 of section 30.1-28-03 is closed to the public and is not open to inspection except by the court, parties to the proceeding or their counsel, other persons for those purposes as the court may order for good cause, and others authorized by court rule.
2. Medical, psychological, or other treatment information protected by federal law or regulation and any financial account numbers related to a ward or proposed ward are confidential and may not be disclosed except to parties to the proceeding, their counsel, and others authorized by court rule. The court may permit access by other persons for good cause.

History. S.L. 2015, ch. 240, § 2, effective August 1, 2015.

30.1-28-03.2. Authorization of a single transaction to sell, encumber, or transfer ownership of real or personal property of the ward.

1. A guardian may move the court for authorization to sell, mortgage, lease, or otherwise encumber or transfer ownership of the real or personal property of the ward, valued at over two thousand five hundred dollars, upon such terms as the court may order, for the purpose of paying the ward’s debts; providing for the care, maintenance, rehabilitation, training, or education of the ward or the ward’s dependents; or for any other purpose which is in the best interests of the ward.
2. The motion must contain:
   1. The type of property;
   2. A description of the property;
   3. The type of transaction;
   4. The details of the transaction;
   5. The reason for the transaction;
   6. The current fair market value of the property:
      1. For real property, an appraisal must be provided unless good cause is shown;
      2. For personal property, a description of how the guardian arrived at the fair market value must be provided;
   7. An explanation of why the transaction is in the best interests of the ward; and
   8. A notice that any person interested in the ward’s property that opposes the transaction shall file an objection within ten days of the notice and demand a hearing.
3. The motion must be served upon the ward, the ward’s spouse, and all interested persons.
4. Any consents of the ward’s spouse or interested persons must be filed with the motion. If the motion is unopposed, the court may authorize the transaction without a hearing or may conduct a hearing and require proof of the matters necessary to support the authorization of the transaction.
5. The court’s order must include specific findings regarding whether the transaction is in the best interests of the ward.

Source: S.L. 2021, ch. 255, § 2, effective August 1, 2021.

30.1-28-04. (5-304) Findings — Order of appointment.

1. The court shall exercise the authority conferred in this chapter consistent with the maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person’s actual mental and adaptive limitations or other conditions warranting the procedure.
2. At a hearing held under this chapter, the court shall:
   1. Hear evidence that the proposed ward is an incapacitated person. Age, eccentricity, poverty, or medical diagnosis alone is not sufficient to justify a finding of incapacity;
   2. Hear evidence and determine whether there are any existing general durable powers of attorney and durable powers of attorney for health care. If there are validly executed durable powers of attorney, the court shall consider the appointed attorneys in fact and agents appointed thereunder when assessing alternative resource plans and the need for a guardian; and
   3. Appoint a guardian and confer specific powers of guardianship only after finding in the record based on clear and convincing evidence that:
      1. The proposed ward is an incapacitated person;
      2. There is no available alternative resource plan that is suitable to safeguard the proposed ward’s health, safety, or habilitation which could be used instead of a guardianship;
      3. The guardianship is necessary as the best means of providing care, supervision, or habilitation of the ward; and
      4. The powers and duties conferred upon the guardian are appropriate as the least restrictive form of intervention consistent with the ability of the ward for self-care.
3. Except upon specific findings of the court, a ward may not be deprived of any of the following legal rights: to vote, to seek to change marital status, or to obtain or retain a motor vehicle operator’s license.
4. The court may find that the ward retains other specific rights.
5. The order appointing a guardian confers upon the guardian only those powers and duties specified in the order. In addition to any other powers conferred upon the guardian, the court’s order must state whether the guardian has no authority, general authority, or limited authority to make decisions on behalf of the ward in each of the areas of residential, educational, medical, legal, vocational, and financial decisionmaking. A grant of limited authority must specify the limitations upon the authority of the guardian or the authority retained by the ward. The court’s order must require the guardian to provide within ninety days from the date of the order a beginning inventory of all assets owned by the ward or in which the ward has an interest. The guardian shall provide a copy of the beginning inventory to the ward and any interested persons designated by the court in its order. Unless terminated earlier by the court, an order appointing or reappointing a guardian under this section is effective for up to five years. At least ninety days before the expiration of the initial order of appointment or any following order of reappointment, the court shall request and consider information submitted by the guardian, ward, ward’s attorney, if any, and any interested persons regarding whether the need for a guardian continues to exist. If it is recommended that the guardianship continue, the court may appoint a guardian ad litem or visitor, or both, in accordance with section 30.1-28-03. The court shall hold a hearing on whether the guardianship should continue. Following the hearing and consideration of submitted information, the court may reappoint the guardian for up to another five years, allow the existing order to expire, or appoint a new guardian in accordance with this section. The supreme court, by rule or order, shall provide for the regular review of guardianship in existence on August 1, 2015.
6. Unless a court of competent jurisdiction determines otherwise, a durable power of attorney for health care executed pursuant to chapter 23-06.5 takes precedence over any authority to make medical decisions granted to a guardian pursuant to chapter 30.1-28.
7. A grant of general authority to make medical decisions includes the authority to consent to involuntary treatment with prescribed medications. Except upon specific findings of the court, a grant of limited authority does not include authority to consent to involuntary treatment with prescribed medications.
8. The court may require a guardian to furnish a bond in the amount and with sureties as the court specifies.

Source: S.L. 1973, ch. 257, § 1; 1983, ch. 313, § 7; 1985, ch. 369, § 5; 1989, ch. 405, § 5; 1999, ch. 297, §§ 2, 3; 2015, ch. 240, § 3, effective August 1, 2015; 2017, ch. 231, § 2, effective April 17, 2017; 2017, ch. 230, § 3, effective August 1, 2017; 2021, ch. 254, § 1, effective August 1, 2021.

30.1-28-05. (5-305) Acceptance of appointment — Consent to jurisdiction — Order — Letters of guardianship.

1. By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding so instituted must be served upon the guardian by the petitioner.
2. A copy of the order appointing the guardian must be served by the petitioner to those given notice under section 30.1-28-09. The order must contain the name and address of the guardian as well as notice of the ward’s right to appeal the guardianship appointment and of the ward’s right to seek alteration or termination of the guardianship at any time.
3. Letters of guardianship must contain:
   1. The name, address, and telephone number of the guardian;
   2. The name, address, and telephone number of the ward;
   3. Specification of the guardian’s authority to make decisions on behalf of the ward in residential, educational, medical, legal, vocational, and financial areas. If limited authority has been granted in any area, the letters must describe the nature of the limitations;
   4. Specification of any other powers or authority conferred upon the guardian; and
   5. Specification of limitations by the court upon the rights and privileges of the ward in matters not governed by powers of the guardian, such as voting, marriage, and driving.
4. The letters must issue to the guardian. The court shall mail copies to the ward and the ward’s counsel.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 405, § 6; 2015, ch. 240, § 4, effective August 1, 2015.

30.1-28-06. (5-306) Termination of guardianship.

The authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, except, the guardian may arrange for a deceased ward’s final disposition and refer the ward’s estate to probate, if no other person is available to perform those acts, the determination of incapacity of the guardian, or upon removal or resignation as provided in section 30.1-28-07. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect the guardian’s liability for prior acts nor the guardian’s obligation to account for funds and assets of the ward.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 405, § 7; 2017, ch. 92, § 21, effective August 1, 2017.

30.1-28-07. (5-307) Removal or resignation of guardian — Termination of guardianship.

1. On petition of the ward or any person interested in the ward’s welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward. On petition of the guardian, the court may accept the guardian’s resignation and make any other order which may be appropriate.
2. The ward or any person interested in the ward’s welfare may petition for an order that the ward is no longer incapacitated, and for removal of the guardian. A request for this order may be made by informal letter to the court or judge. Any person who knowingly interferes with transmission of this kind of request to the court or judge may be adjudged guilty of contempt of court.
3. Before removing a guardian, accepting the resignation of a guardian, or on finding that the ward is no longer incapacitated and ordering the guardianship terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence of the present guardian and to the place where the ward resides or is detained, to observe conditions and report in writing to the court.

Source: S.L. 1973, ch. 257, § 1; 1989, ch. 405, § 8.