A Guide to Creating a Last Will and Testament in North Dakota

A final will and testament is a crucial component of making arrangements for the distribution of your estate, i.e., you can leave property—including any real estate, money, and personal property—after your passing to your near and dear ones. As a legal document, a North Dakota Will allows the testator (the person making the will) to choose a personal representative for the estate and make provisions for a spouse, children, other loved ones, and pets after their death.

The difference between a last will and testament and a living will

According to North Dakota law, a North Dakota Living Will, also known as a healthcare directive, is a legal document that offers instructions in the event you become incapacitated and unable to make decisions about your medical treatment. It is not to be mistaken with a Will.

Why you should make a Will

A final will and testament are not legally needed, but in the absence of one, state intestacy laws govern how an estate's assets are distributed. It is typically a good idea to make a final will and testament because the results might not be what the decedent had intended. One of the most advantageous aspects of having a Will is that it enables the testator—the person who makes and signs the Will—to choose a person who will carry out its provisions. The "executor" is the person who takes care of executing the Will.

There are quite a few requirements that you’ll have to fulfill in order to write a valid last will and testament North Dakota. They are as follows:

The following are prerequisites for a last will and testament in North Dakota:

1. The testator has to be a legal adult.
2. The testator should have a sound mind, or in other words, they cannot be proved as mentally incapable of the job in a court of law.
3. The testator or another person acting in the testator's name must sign the Will in the testator's presence and under the testator's instruction.
4. At least two competent witnesses must sign a Will in North Dakota, and the two witnesses must all do it quickly after witnessing the other person sign. An interested witness's signature does not render a Will void or any of its provisions.
5. A testator's acknowledgment of a North Dakota law before a notary public or any person permitted by law to take acknowledgments is also considered valid. Your Will does not need to be produced in front of a notary public to be valid in North Dakota. To make your Will legally binding, you can choose to have it notarized if you don't wish to have it witnessed.
6. North Dakota Wills are required to be in written format in order to be legally valid.
7. Anyone may get a testator's property.

A holographic Will, or as they are more generally known, handwritten Wills, are legal documents that are recognized in North Dakota as long as the signature and relevant sections of the document are in the testator's handwriting. In North Dakota, there is no requirement for a Will to be witnessed by competent witnesses in order for it to be holographic.

Additional benefits

In addition to offering the chance to control how assets are distributed, North Dakota last will and testament also give the testator a chance to make a charitable donation, establish a trust for any person, designate a guardian for minor children, or establish a "pet trust" to take care of an animal after their owner's passing.

North Dakota Probate Process

The validity of a Will must be established in probate court before its provisions can be adopted. The process of dispersing a decedent's estate under the supervision of the court is known as probate. Depending on the size of the estate, North Dakota probate procedures vary, but generally, the process is less complicated for estates valued at under $50,000.

Is probate necessary? How can you avoid it?

According to North Dakota state laws, probate is generally necessary. There are, however, several situations in which an estate may not require probate in order for the heirs to receive the assets. A revocable living trust is the best approach to avoid probate in North Dakota. Additionally, assets that pass automatically to a beneficiary do not require probate.

The length of the probate process in North Dakota will vary based on the amount of the estate and if a formal or informal procedure is required. At the very least, anticipate it taking four to six months, but don't be shocked if it takes longer than that.

In which cases can you avoid probate?

Unless they are placed in a trust, most estates must go through the probate process. If an asset has an identified beneficiary, it might not need to go through probate.

However, North Dakota does permit a more streamlined informal probate procedure. Probate may be avoided if the estate's value exceeds $50,000. Just an affidavit is needed for the administration of small estates.

The personal representative may administer the estate without a hearing or court supervision by using the streamlined or informal probate process. A small estate must have a value that is less than the homestead allowance, funeral costs, and other permitted bills to be paid.

North Dakota probate court

In North Dakota, probate is handled by the district court. There are eight judicial districts; however, there are district courts in each of the 53 counties. One of the few states, North Dakota, has adopted the Uniform Probate Code to streamline the procedure.

What is intestacy? What happens when a person dies intestate in North Dakota?

"Intestate" refers to someone who passes away without making a Will and invokes the rigorous intestacy laws. If someone has died intestate, the deceased person's surviving spouse in North Dakota will receive the entire inheritance in the absence of a Will unless the spouse or the departed has children from other relationships.

If there is a surviving spouse, however, no minor children or descendants, the deceased's parents can also get a portion of the assets. Your surviving spouse may get the entire estate if there are no parents or descendants.

Other relatives, such as brothers and grandparents, will receive an inheritance based on how closely related they were to the deceased if there is no surviving husband, children, or parents.

Which properties cannot be distributed through a North Dakota last will and testament?

A Will cannot be used to distribute the entire estate if the situation so arises. The following are some North Dakota exceptions:

1. A joint-tenancy property with the right of survivorship.
2. The proceeds of a life insurance policy and a retirement account.
3. Spouse's elective share, if they aren't included in the Will.

Are free North Dakota Wills worth it as a legal document?

If you look online, you'll easily see free templates advertised as "Free North Dakota last will and testament template." However, in case you have specific instructions, or you believe you have a complicated estate, you should definitely consider seeking the assistance of an attorney to help you draw up a Will that will take all of your concerns into consideration instead of utilizing a free last will and testament template.

How to change or revoke a last will and testament according to North Dakota law

Changing a North Dakota last will and testament

A codicil, or modification to the Will, must be signed in the same way as a Will in order to update a North Dakota Will at any time.

Revocation

A North Dakota Will may be revoked by the execution of a new Will or by committing a revocatory act, which is defined as "obliterating, burning, tearing, cancelling, or destroying" the Will or any portion of it, with the intent to do so, by the testator or by another person acting at his or her direction in his or her presence.

Conclusion

It does indeed take some time for the grieving process to be finished after someone passes away. There are some things; nevertheless, that simply cannot wait. The estate of the deceased person or their personal property must be handled, and the assets must be distributed in accordance with Will's instructions.

The legal procedure for allocating the estate's assets is known as probate. The task of directing the estate's distribution falls to the court. To be eligible for an affidavit or informal probate, the petition for probate must be submitted within three years of the decedent's passing. The estate needs to undergo formal probate if more time has passed.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult a qualified attorney for advice on your specific situation.