Probate and the Devolution of Real Property in North Dakota

Probate is the legal process of settling an estate and distributing the remaining assets pursuant to the decedent’s will or, if the decedent died without a will, according to the laws of intestate succession in the relevant jurisdiction. The district court of the North Dakota county wherein the decedent was domiciled at the time of death handles probate of decedents’ estates. In North Dakota, probate procedures are codified at Title 30.1 (Uniform Probate Code) of the North Dakota Century Code.

Vesting, or how a property owner holds title, determines which assets are subject to probate. This article focuses on real property, though personal property is also subject to probate. Probate property includes real property owned solely and/or by the decedent and others as tenants in common. Non-probate property includes realty titled in the decedent’s name and others as joint tenants; because of the right of survivorship, survivors succeed automatically to the decedent’s interest. Real property held in a trust or titled with a beneficiary designation (as through a recorded transfer on death deed) also transfers outside of probate.

In North Dakota, the Uniform Probate Code allows for informal probate of wills, meaning a court appearance and court hearing are not required, so long as the proper paperwork is filed [1]. If the decedent died with a will, applicants file for informal probate of will and appointment of a personal representative with the decedent’s will in the appropriate district court. If the decedent died intestate, applicants file for informal appointment of personal representative in intestacy.

A personal representative (PR) is the fiduciary appointed by the district court to administer the estate. The priority for appointment as PR is established at N.D.C.C. 30.1-13-03, with top priority to the person nominated by the decedent’s will. If the person seeking appointment does not have highest priority, he or she will need to obtain waivers from each person having equal or higher priority to serve.

When named by the decedent’s will, the PR may be referred to as an executor. When the decedent dies intestate or the will does not nominate an executor, the PR is selected by the court. He or she may be referred to as an administrator. In either case, the court issues letters to the PR (called either letters testamentary or letters of administration), which act as evidence of the PR’s authorization to act in a representative capacity. The PR’s duties commence with receipt of the letters (30.1-18-01).

The duties and powers of PRs are outlined in Chapter 30.1-18 of the N.D.C.C. Within a month of appointment, the PR provides notice to heirs and devisees of their potential interest in the estate and that he or she has been appointed as the estate’s PR (30.1-18-05). The PR is required to compile and file an inventory of the estate with the district court (30.1-18-06). The PR may publish notice to creditors, but it is not required in informal probate proceedings (30.1-19-01). After marshalling the assets and paying claims, the PR may distribute the remaining assets.

Pursuant to the Uniform Probate Code, upon the decedent’s death, his or her property (real and personal) devolves to the devisees to whom it is devised by will (in a testate estate), or, in the absence of testamentary disposition, to his or her heirs, subject to the rights of creditors, allowances, exempt property, and administration (30.1-12-01).

The PR makes distributions according to the decedent’s will; devisees may choose to disclaim their interest, and a surviving spouse can elect to take one-half share regardless of provisions in the will (30.1-05-01). When a decedent dies intestate (without a will), his or her assets devolve according to laws of intestate succession (see N.D.C.C. 30.1-04). Shares of heirs of an intestate estate are specified at N.D.C.C. 30.1-04-02.

The distribution of real property is evidenced by a deed of distribution, executed by the personal representative and recorded in the county where the subject property is located. Because title passes to devisees or heirs upon death by process of law, the deed of distribution is recorded as evidence of title only, and states on the record that the property is not needed to pay claims on the estate, and the PR waives the statutory right to bring the property back into the estate [2].

The deed of distribution includes statements that the grantor is the duly appointed and acting PR of the estate, and that the within named grantee is entitled to distribution of the property described within. In addition to naming each grantee, the deed states in what proportion each grantee succeeds to an interest in the property. The PR must sign the deed in the presence of a notarial official before recording along with a certified copy of the PR’s letters. To comply with North Dakota’s requirements that conveyances contain a certified statement of consideration, a deed of distribution should note an exemption as a transfer resulting as a settlement of an estate on the face of the document (11-18-02.2(6)(d)).

In some cases, the PR may need to sell realty to pay claims on the estate using the proceeds from the sale. The Uniform Probate Code authorizes PRs to enter certain transactions, including the sale of real property of the estate (N.D.C.C. 30.1-18-15(23)). In other instances, a PR may need to petition the district court for partition of a parcel to facilitate distribution (30.1-20-11). If partition cannot be made, the court may order a sale of real property. There are different probate instruments for selling as opposed to distributing real property; realty sold by the PR is transferred by execution of a personal representative’s deed.

The personal representative’s deed evidencing a sale of real property conveys the decedent’s interest in the subject property to the within named grantee (the purchaser). The deed contains statements that the grantor is the duly appointed and acting PR of the estate, and that the within named grantee desires to purchase the subject property. Unlike the deed of distribution, the PR deed is a transfer made for consideration, and the grantee or grantee’s agent confirms the amount paid for the transfer by providing a certificate of full consideration, or by stating an exemption from the requirement to provide the full consideration paid under N.D.C.C. 11-18-02.2(6). As with the deed of distribution, the PR must sign in the presence of a notary public and record in the appropriate county along with a certified copy of his/her letters.