North Dakota Wills vs. Trusts
North Dakota offers straightforward estate planning options with several unique advantages. The Peace Garden State recognizes holographic wills, allows for simplified probate procedures for estates under $50,000, and offers transfer-on-death deeds for real estate. With no state inheritance or estate taxes, a comprehensive $300,000 spousal inheritance threshold, and statutory protection for spendthrift trusts, North Dakota residents have powerful tools available to preserve their legacy while protecting heirs from unnecessary costs and delays.
Table of Contents
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North Dakota Will Requirements
A North Dakota Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old
- Format: Must be in writing
- Signature: Must be signed by the testator or by another individual at the testator’s direction in their conscious presence
- Witnesses: Must be either attested by at least two witnesses OR acknowledged by the testator before a notary
Witness Requirements
For North Dakota wills:
- Witnesses must observe the testator signing the will or hear the testator acknowledge their signature or the will
- Witnesses must sign the will within a reasonable time after the testator’s signature or acknowledgement
- The only prerequisite to witness a will is that the individual must be generally competent to act as a witness in North Dakota
Unlike in some states, no provision of a North Dakota will is invalid if a witness to the will is an interested party (a person with an interest in the estate).
Self-Proved Wills
North Dakota wills can be made “self-proved” through the use of a notarized affidavit executed by the testator and the will’s witnesses. The affidavit states that:
- The testator signed the will voluntarily in the witnesses’ presence
- The testator had the required legal capacity
- The testator was under no constraint or undue influence
When present, the self-proved affidavit serves as evidence of the will’s authenticity and allows for admission in probate without further witness testimony. The North Dakota Legislative Assembly provides a form self-proving affidavit, at N.D. Cent. Code §30.1-08-04.
Document Incorporation
North Dakota law permits a will to incorporate by reference another document in existence when the will is executed. The will must manifest an intent to incorporate the other document and sufficiently describe the document to allow identification.
North Dakota law specifically authorizes incorporation by reference of a written list identifying items of tangible personal property (excluding money) with intended recipients for each item. Often called a “memorandum of personal property,” the list must be signed by the testator and must identify with reasonable certainty the devised items and intended recipients. A list of personal property can be created before or after a will is executed and can be altered by the testator after its initial preparation.
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Amendment, Revision, and Revocation of North Dakota Wills
Amending a North Dakota Will
North Dakota wills can be amended through:
- Execution of a codicil (an addendum to an existing will)
- Execution of a later will satisfying all formalities for execution of a valid will
Revoking a North Dakota Will
A North Dakota will may be revoked by:
- A “revocatory act” performed by the testator (or by another person in the testator’s conscious presence at the testator’s direction) with the intent of revoking the will
- Physical destruction of the document—such as through burning, tearing, canceling, or obliteration
- Execution of a later will that expressly revokes the prior will or includes inconsistent provisions
A new will that does not expressly revoke a prior will is presumed to revoke the prior will by inconsistency if the later will completely disposes of the testator’s estate. If the later will does not completely dispose of the testator’s estate, North Dakota law presumes that the later will was intended as a supplement to the earlier will—with the later-executed will controlling in the event of any conflicting provisions.
Automatic Revocation by Divorce
If a testator or settlor of a revocable trust divorces after executing a North Dakota will or trust, any revocable provisions in favor of the former spouse (or a relative of the former spouse) are deemed to have been revoked. Revoked dispositions are treated as though the former spouse disclaimed the interest.
Revocation due to divorce is inapplicable if the will or trust instrument, a property settlement agreement, or court order states that the testator’s divorce does not affect the will or trust. North Dakota law also expressly provides that an individual who has been divorced from a decedent does not qualify as a “surviving spouse” for other probate purposes.
Effect of Marriage After Will Execution
If a North Dakota testator marries after executing a will, the surviving spouse inherits the same share of the estate he or she would have inherited had the testator died with no will, adjusted for any distributions to children of the testator born before the marriage and who are not children of the surviving spouse.
A later-wed spouse’s share is inapplicable if:
- The will was made in contemplation of the marriage
- The testator intended the will to apply notwithstanding the marriage
- The testator made other provisions for the surviving spouse intended in lieu of the will
Children Born After Will Execution
If a child is born to or adopted by a North Dakota testator after execution of a will, the after-born child may be entitled to an interest in the testator’s estate. If the testator had no other children when creating the will, the after-born child’s share is equal to what the child would have inherited had the testator died with no will—except that the share is inapplicable if the will leaves substantially all of the estate to the child’s other parent.
If the testator had other children when making the will, the after-born child’s share is based upon and limited by the devises to the other children. An after-born child’s share is inapplicable if it appears from the will that the omission was intentional or the decedent made other provisions for the child intended in lieu of the will.
Holographic and Oral Wills
Holographic Wills
A document that does not fully satisfy the requirements for an attested North Dakota will may be nonetheless valid as a holographic will if it is signed by the testator and all material provisions of the document are written in the testator’s handwriting. Evidence outside of the document itself can be used to establish in probate that a handwritten document was created with the intent to form a will.
Oral (Nuncupative) Wills
Oral (or “nuncupative”) wills are not recognized under North Dakota law.
North Dakota Trust Requirements
Capacity Requirements
When creating a North Dakota trust, the settlor must:
- Express an intent to create the trust
- Have adequate capacity (measured under the same standard that applies to wills – at least 18 years old and “of sound mind”)
A North Dakota trust is void to the extent its creation was induced through fraud, duress, or undue influence.
Trust Creation Requirements
North Dakota trusts can be created for any purposes that are lawful and possible to achieve. In general, the terms of a trust and the trust itself must be for the benefit of the trust’s beneficiaries.
A North Dakota trust may be created through:
- Transfer of property by a settlor to a trustee (either during life or through a will or other testamentary instrument)
- A property owner’s declaration that identifiable property is held as trustee
- Exercising a power of appointment in favor of a trustee
Most North Dakota trusts are evidenced by a written trust instrument that is signed by the settlor and sets forth the trust’s terms. However, North Dakota law does not preclude oral trusts, as long as the creation and terms of an oral trust are established by clear and convincing evidence. Certain types of trusts—such as trusts relating to real estate—must be evidenced in writing.
Trustee and Beneficiary Requirements
North Dakota trusts must have:
- A definite beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts created for noncharitable purposes)
- A trustee with actual duties to perform
The same person cannot be both the sole trustee and sole beneficiary of a North Dakota trust.
Trustee Powers and Duties
The trustee of a North Dakota trust:
- Is a fiduciary
- Has a duty to administer the trust prudently and only for the benefit of the trust’s beneficiaries
- Is governed by the “prudent investor rule” when managing assets (though that rule may be expanded, restricted, or eliminated by the trust instrument)
To the extent a North Dakota trust is revocable, the trustee’s duties are owed exclusively to the settlor.
Spendthrift Provisions
Although the general rule is that creditors of a trust’s beneficiaries may attach a beneficiary’s interest in the trust, North Dakota law recognizes “spendthrift provisions,” which prevent most creditors of beneficiaries from attaching trust assets until actually distributed to the beneficiary.
Spendthrift provisions in North Dakota trusts do not protect against attachment to satisfy certain domestic support obligations, tax claims, or claims arising from services provided to protect the beneficiary’s interest in the trust.
Creditor Claims
Creditors of a North Dakota revocable trust’s settlor can attach trust assets—during the settlor’s life or through a claim against the settlor’s estate—as if assets had not been transferred to the trust. A settlor’s creditors can attach assets held in an irrevocable trust (other than special needs trusts) to the extent property could be distributed for the settlor’s benefit.
Revocation and Termination
North Dakota law assumes that a trust is revocable unless the trust is expressly made irrevocable. A settlor can revoke or amend a revocable trust using the method specified in the trust instrument or—if the trust instrument does not specify a method—through a later will or codicil or another method that clearly manifests the settlor’s intent to revoke or modify the trust.
North Dakota trusts terminate upon:
- Revocation or expiration under the trust’s own terms
- When there is no purpose of the trust remaining to be achieved
- When the trust’s purposes become unlawful or impossible to achieve
A trust may also be terminated or modified by a court upon the petition of the settlor, trustee, and/or beneficiaries. In some circumstances, modification or termination of a trust may be made upon the consent of all beneficiaries. A court may also modify a North Dakota trust to conform to the settlor’s intentions, to achieve the settlor’s tax objectives, or if the trust has become uneconomical to administer.
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Special Considerations
Estate Taxes
No State Estate or Inheritance Tax
North Dakota does not impose either estate or inheritance taxes. Large North Dakota estates may still be liable for federal estate taxes.
Simplified Probate
Small Estate Procedures
North Dakota law allows rightful successors of personal property within small North Dakota estates to obtain possession of estate property outside probate by execution of a compliant affidavit. To qualify as a small estate, the value of the estate (after liens and encumbrances) must not exceed $50,000, and the estate must not include real estate.
The affidavit sets forth specific information required by law—such as the successor’s relationship to the decedent, the basis of the right to recover the property, and the status of any personal representative appointment.
Informal Probate Administration
North Dakota also allows for informal probate administration of uncontested estates. An interested person submits an application for informal appointment of a personal representative for the estate. If the appointment is granted, the personal representative administers the estate by providing necessary notices, inventorying estate assets, handling creditor claims, and distributing estate assets to beneficiaries—with less formality than the ordinary probate process.
Non-Probate Transfers
Transfer-on-Death (TOD) Deeds and Vehicle Titles
TOD Real Estate Deeds
North Dakota is among the states that authorize transfer-on-death deeds for real estate (also called “TOD deeds” or “beneficiary deeds”). Ownership of real property subject to a TOD deed automatically transfers to the named beneficiary upon the owner’s death, avoiding the need for probate. North Dakota TOD deeds are revocable and do not affect actual ownership and control of the property until the owner’s death.
Vehicle Titles
North Dakota does not recognize TOD designations on vehicle titles.
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Our estate planning specialists can help you navigate North Dakota’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| North Dakota Special Feature | Allows holographic wills; memorandum of personal property | Spendthrift provisions; assumption of revocability; TOD deeds for real estate |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for North Dakota residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences.
North Dakota offers unique estate planning tools including transfer-on-death deeds for real estate, recognition of holographic wills, and simplified probate for small estates under $50,000. The state’s approach of assuming trusts are revocable unless specified otherwise provides flexibility for many estate planning situations.
With no state estate or inheritance taxes, North Dakota provides residents with a favorable environment for estate planning. The state’s spousal protection laws ensure that a surviving spouse receives a fair share of the estate, with generous statutory minimums ($300,000 plus three-quarters of the remaining estate in some cases) for intestate estates.
When any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under North Dakota law to ensure your estate plan takes full advantage of the state’s provisions while avoiding potential pitfalls.
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Frequently Asked Questions About North Dakota Estate Planning
Does North Dakota have an inheritance or estate tax?
No, North Dakota does not impose any state-level inheritance or estate taxes. However, large estates may still be subject to federal estate tax if they exceed the federal exemption threshold (currently $13.99 million per individual in 2025).
Can I handwrite my will in North Dakota?
Yes, North Dakota recognizes holographic (handwritten) wills as valid if the will is signed by the testator and all material provisions are in the testator’s handwriting. Unlike many states, North Dakota allows external evidence to help prove the document was intended to be a will.
How can I avoid probate in North Dakota?
In North Dakota, you can avoid probate by:
- Creating a living trust and transferring assets to it
- Setting up payable-on-death designations for bank accounts
- Using transfer-on-death designations for securities and real estate
- Holding property in joint tenancy with right of survivorship
- For small estates under $50,000 (excluding real estate), using the simplified small estate affidavit process
What happens if I die without a will in North Dakota?
If you die without a will in North Dakota (known as dying “intestate”), your assets will be distributed according to the state’s intestacy laws. Your surviving spouse would receive:
- The entire estate if you have no children or parents
- The entire estate if all your children are also your spouse’s children and your spouse has no children from other relationships
- $300,000 plus 3/4 of the remaining balance if you have surviving parents but no children
- $225,000 plus 1/2 of the remaining balance if all your children are also your spouse’s children, but your spouse has children from other relationships
- $150,000 plus 1/2 of the remaining balance if you have children who are not your spouse’s children
Any remaining assets would go to your children, parents, siblings, or more distant relatives, in that order.
Can my spouse be disinherited in North Dakota?
No, North Dakota protects spouses from complete disinheritance through its elective share laws. Even if your will excludes your spouse, they can claim an elective share equal to one-half of your “augmented estate.” Additionally, North Dakota provides a supplemental elective share of up to $75,000 if the spouse’s interest in the estate is less than that amount.
What is a Transfer-on-Death deed and how does it work in North Dakota?
A Transfer-on-Death (TOD) deed is a legal document that allows you to transfer real estate to named beneficiaries upon your death, without going through probate. In North Dakota, TOD deeds are authorized by law and provide several benefits:
- The property transfers automatically upon death
- You retain complete ownership and control during your lifetime
- The deed is revocable, so you can change your mind at any time
- It avoids probate for the real estate covered by the deed
- Unlike adding someone to your deed while alive, a TOD deed doesn’t create current ownership rights or expose the property to the beneficiary’s creditors during your lifetime
What is the simplified probate process in North Dakota?
North Dakota offers two simplified probate processes:
- Small Estate Affidavit: Available for estates valued at less than $50,000 (not including real estate). Successors can claim assets by completing an affidavit without formal probate proceedings.
- Informal Probate Administration: Available for uncontested estates. This process involves less court supervision and fewer formalities than formal probate, making it faster and less expensive.
Can I include my pet in my estate plan in North Dakota?
Yes, North Dakota law specifically allows the creation of trusts for the care of animals that were alive during the settlor’s lifetime. These pet trusts can provide for the care of your pet after your death and remain in effect for the lifetime of the animal. The trust can name a caretaker and trustee (which can be different people) and provide specific instructions for your pet’s care.
