What Happens If You Die Without a Will in North Dakota?

Updated

The purpose of estate planning in North Dakota is to ensure all your money, property, and valuables go to the people whom you want to inherit at minimum cost.

A lot of estate planning focuses on the second part - "minimum cost." Trusts (including a "living trust," more about that below) and other financial strategies can help keep the costs of processing your estate to a minimum after death.

Jump ahead to these sections:

The first part of estate planning - "transfer your assets to your intended beneficiaries" - is much simpler. If you have a valid will in North Dakota, you can transfer your assets to the people (known as "intended beneficiaries") named in the will.

While a will is simple to write, many North Dakotans do not have a will. This article examines what happens if you die without a will in North Dakota.     

North Dakota's Intestacy Laws Explained

You can't take it with you when you die. So, where does it all go? Well, theoretically, all to your heirs.

If you execute a valid will in North Dakota, you can name the beneficiaries of your assets in your will to be the new owners of your assets.

If you do not execute a valid will in North Dakota, the state has various default rules in place to determine who should be the new owners of your assets. These "default" rules are called "intestacy laws."

North Dakota's intestacy laws will distribute your assets, in the following order of priority, to these people after death:

  • If you have a surviving spouse but no surviving descendants (children, grandchildren) or parents, everything goes to your surviving spouse.
  • If you have a surviving spouse and surviving descendants, all of whom are also descendants of your surviving spouse (i.e., the kids you had together), and your spouse has no other children from another partnership, everything goes to your surviving spouse.
  • If the above applies and your surviving spouse DOES have one or more descendants who are not also yours, your surviving spouse receives the first $225,000, plus one-half of the balance of your remaining assets, and your surviving descendants split the rest. This situation could arise when your marriage was a "second marriage" for your surviving spouse.
  • Suppose you have a surviving spouse and surviving descendants, but one or more of those descendants was from a previous partnership that you had. In this case, your surviving spouse receives the first $150,000 of your estate, plus one-half of the balance of your assets, and your surviving descendants split the rest. This situation could arise when your marriage was a "second marriage" for you.
  • If you have a surviving spouse and surviving parents but no surviving descendants, your surviving spouse gets the $300,000, plus three-quarters of the balance of your assets and your surviving parents receive the rest.
  • If you have surviving descendants but no surviving spouse, everything goes to your surviving descendants.
  • If you have surviving parents but no surviving spouse or descendants, everything goes to your surviving parents.
  • If you have no surviving spouse, descendants, or parents, everything goes to the surviving descendants of your parents – potentially your surviving siblings.

If there are multiple people who could conceivably inherit, North Dakota allocates the assets to them based on the concept of "representation." 

Representation does several things. First, it divides an asset into as many equal shares as there are surviving children, plus deceased children that may have surviving descendants. Two, it allocates one share to each surviving child, and three, it allocates any remaining shares to any surviving grandchildren whose parent pre-deceased you. For example:

Jennifer dies. She is pre-deceased by her son Tony and survived by her three children, Bonnie, Tammy, and Alan. She also has two grandchildren, Rory and Alexa, who are Tony's daughters. Bonnie, Tammy, and Alan, as Jennifer's surviving three children, each receives equal one-quarter shares of Jennifer's assets. Rory and Alexa, as Tony's surviving children, each receive one-eighth of Jennifer's assets, as Tony would have received one-quarter himself, but he's not around anymore. So his share of his mother's assets is split among his children. Rory and Alexa inherit Jennifer's assets "by representation" of their deceased father.

North Dakota's intestacy laws also provide further rules for different family situations to determine who can inherit your assets after death.             

How Does Probate Work in North Dakota There Is No Will?

North Dakota's probate laws are the process by which your assets transfer to your beneficiaries per North Dakota's intestacy laws.

Probate in North Dakota is a legal process that a judge supervises.

Probate begins with the judge appointing a personal representative to administer the estate. If there is no will, North Dakota law sets the following order of priority for who should be appointed as the personal representative:

  • The surviving spouse.
  • Other potential beneficiaries.
  • The guardian or conservator of the deceased at the time of death.
  • A trust company.
  • Forty-five days after death, any creditor.

Once appointed, the personal representative has various duties to complete, including:

  • Taking inventory of all the assets.
  • Collecting and maintaining the assets, including paying any bills from an estate bank account.
  • As required by North Dakota law, sending notice to any creditors.
  • Paying those creditors.
  • Filing any necessary tax returns in connection with the estate.
  • Distributing the remaining assets to any beneficiaries.

There are three types of probate in North Dakota: informal (the most common type of probate, involving the least judicial supervision), unsupervised formal, and supervised formal (involving the most judicial oversight). 

Who Typically Inherits Assets in North Dakota If there isn't a Will?

If there is no will in North Dakota, the people who are usually first in line to inherit are the close family members described above: the surviving spouse, children, grandchildren, parents, and siblings. The state assumes that people would want their immediate family members to inherit their assets.  

However, as you might guess, not everyone wants immediate family members to inherit. For example:

  • Example 1: John dies, survived by his mother, Betty. John wants all his assets to go to a charity but does not execute a valid will. Under North Dakota's intestacy laws, John's assets will all go to Betty, contrary to John's wishes.
  • Example 2: Felicia dies, survived by her husband, George, and her only child, Samantha. George has no other surviving descendants. Felicia wants to split her assets equally between both her husband and daughter but does not execute a valid will. Under North Dakota's intestacy laws, Felicia's assets all go to George.
  • Example 3: Walter dies. He is pre-deceased by his daughter Amy and survived by his two other children, Jamie and Debbie, and a grandson, Barry, who is Amy's son. Walter wants to transfer his half assets to Jamie, 40% to Debbie, and 10% to Barry but does not execute a valid will. Under North Dakota's intestacy laws, Walter's assets will split into equal one-third shares and transfer equally to Jamie, Debbie, and Barry.     

Since they didn't have a valid will, John, Felicia, and Walter let North Dakota's intestacy laws control their assets.

Frequently Asked Questions: Dying Without a Will in North Dakota

Here are some of the frequently asked questions about what happens when you die without a will in North Dakota.

What happens when your parent dies without a will?

When your parent has a surviving spouse and surviving descendants, all of whom are children they had with their spouse, and there are no other children from other partnerships in the picture, you are not a beneficiary of your parent's assets. Everything will go to your parent's spouse.

When your parent has a surviving spouse and surviving descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse does have one or more surviving descendants from a different partnership, the surviving spouse gets the first $225,000, plus one-half of your parent's assets. You and any other surviving descendants will split the rest.

When your parent has a surviving spouse and surviving descendants, one or more of whom are not descendants from a different partnership, the surviving spouse gets the first $150,000, plus one-half of your parent's assets, and you and any other surviving descendants split the rest.

When your parent has no surviving spouse, you and any other surviving descendants are the sole beneficiaries of your parent's assets.

If you are a descendant, much you can inherit depends on how many siblings and nieces or nephews you might have. For example, if there is no surviving spouse and your parent had three children, you will receive one-third of your parent's assets. 

What are a surviving spouse's rights if there's no will?

A surviving spouse has significant rights if there is no will in North Dakota.

The surviving spouse is the sole beneficiary of the decedent's assets if:

  1. There are no surviving descendants or parents.
  2. If all of the surviving descendants are also descendants of the surviving spouse.
  3. There are no other descendants of the surviving spouse who survives the decedent.

If the deceased is survived by their children, and the surviving spouse has one or more children from a different partnership, the surviving spouse gets the first $225,000, plus one-half of the balance of the decedent's assets.

If there are surviving children from a different partnership that the deceased had, the surviving spouse gets $150,000, plus one-half of the balance of the decedent's assets.

If there are no surviving children but there are surviving parents, the surviving spouse gets $300,000, plus three-quarters of the balance of the rest of the assets.

In addition, under North Dakota law, the surviving spouse is first in the order of priority for who should be the personal representative if there is no will.

Are there any probate exemptions if you die without a will in North Dakota?

A "living trust" is commonly used in North Dakota to avoid probate. This is a type of account you create when you're alive to hold all your assets.

You need to create a living trust (with a trust agreement) and transfer your assets to the living trust before death.

Other probate exemptions in North Dakota include:

  • Use of a small estate affidavit to transfer up to $50,000 of property. A small estate affidavit is a form, typically completed by a beneficiary, that enables up to $50,000 of property to be transferred after death to a beneficiary in North Dakota without going through probate. It is easier to transfer property by a small estate affidavit than by probate.
  • Any property you may jointly own that has specific rights of survivorship.
  • Any account that has a specific person named as the beneficiary (such as a life insurance policy).

How long does probate take when there is no will?

While there is no precise timing for probate in North Dakota, it commonly takes nine to 12 months. Probate can take longer when there is no will because there are more uncertain issues to interpret and resolve.

Who is considered next of kin in North Dakota?

The phrase "next of kin" does not have a formal legal definition in North Dakota. However, "next of kin" generally means close family members, including the surviving spouse, children, grandchildren, parents, or siblings. 

Wills - The Easiest Part of Prudent Estate Planning in North Dakota

Writing a will is the easiest part of estate planning in North Dakota. You don't have to pay anything or file any taxes to do it. To have a valid will in North Dakota, you simply need to sign a written document in front of two witnesses or a notary.

With the will, you can avoid the problem of the intestacy laws undermining your goals. With the will, you can transfer your assets to the people you want and achieve the first part of prudent estate planning.

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