NORTH DAKOTA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: N.D. Cent. Code, Title 30.1, Ch. 08: Wills (N.D. Cent. Code ยงยง30.1-08-01, et. seq.).
Trusts: N.D. Uniform Trust Code (N.D. Cent. Code ยงยง59-09-01, et. seq.).
North Dakota Will Requirements.
To execute a valid will, a North Dakota testator must be at least 18 years old and โof sound mind.โย North Dakota wills must be in writing and must be signed by the testator (or in the testatorโs name by an individual signing at the testatorโs direction while in the testatorโs conscious presence). A North Dakota will must also be either attested by at least two witnesses or acknowledged by the testator before a notary.ย ย ย
Witnesses must observe the testator signing the will or hear the testator acknowledge the testatorโs signature or the will.ย In either case, witnesses must sign the will within a reasonable time after the testatorโs signature or acknowledgement occurs.
The only prerequisite to witness a North Dakota will is that the individual must be generally competent to act as a witness in North Dakota. No provision of a North Dakota will is invalid if a witness to the will is an interested party (i.e., a person with an interest in the estate).ย ย
North Dakota wills can be made โself-provedโ through the use of a notarized affidavit executed by the testator and the willโs witnesses.ย The affidavitโwhich can be executed simultaneously with the will or afterwardโstates that the testator signed the will voluntarily in the witnessesโ presence with the required legal capacity and while under no constraint or undue influence.ย When present, the self-proved affidavit serves as evidence of the willโs authenticity and allows for admission in probate without further witness testimony.ย The North Dakota Legislative Assembly provides a form self-proving affidavit, at N.D. Cent. Code ยง30.1-08-04.
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.ย ย
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.ย Often called a โmemorandum of personal property,โ 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.ย ย
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Amendment, Revision, and Revocation of North Dakota Wills.
A North Dakota will can be amended through execution of a codicil (an addendum to an existing will) or later will satisfying all formalities for execution of a valid will.ย ย
A North Dakota will may be revoked by a โrevocatory actโ performed by the testator (or by another person in the testatorโs conscious presence at the testatorโs direction) with the intent of revoking the will or any part thereof.ย โRevocatory actsโ can include physical destruction of the documentโsuch as through burning, tearing, canceling, or obliteration.
A North Dakota will may also be revoked through the testatorโs execution of a later will that expressly revokes the prior will or includes inconsistent provisions.ย 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 testatorโs estate.ย If the later will does not completely dispose of the testatorโs estate, North Dakota law presumes that the later will was intended as a supplement to the earlier willโwith the later-executed will controlling in the event of any conflicting provisions.
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 testatorโs 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 โsurviving spouseโ for other probate purposes.ย ย
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.ย A later-wed spouseโs share is inapplicable if the will was made in contemplation of the marriage, the testator intended the will to apply notwithstanding the marriage, or the testator made other provisions for the surviving spouse intended in lieu of the will.
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 testatorโs estate. If the testator had no other children when creating the will, the after-born childโs share is equal to what the child would have inherited had the testator died with no willโexcept that the share is inapplicable if the will leaves substantially all of the estate to the childโs other parent. If the testator had other children when making the will, the after-born childโs share is based upon and limited by the devises to the other children. An after-born childโs 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.
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 testatorโs handwriting.ย 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 (or โnuncupativeโ) wills are not recognized under North Dakota law.
North Dakota Trust Requirements.
North Dakota trusts are primarily governed by the North Dakota Uniform Trust Code, enacted by the legislature at N.D. Cent. Code ยงยง59-09-01, et. seq.ย North Dakota trusts can be created for any purposes that are lawful and possible to achieve.ย In general, the terms of a trust and the trust itself must be for the benefit of the trustโs beneficiaries.ย ย ย
To create a valid trust under North Dakota law, the settlor must express an intent to create the trust and have adequate capacity. A settlorโs capacity to create, revoke, amend, or fund a North Dakota trust is measured under the same standard that applies to wills (i.e., the settlor must be at least 18 years old and โof sound mindโ). A North Dakota trust is void to the extent its creation was induced through fraud, duress, or undue influence.
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) and a trustee with actual duties to perform. The same person cannot be both the sole trustee and sole beneficiary of a North Dakota trust.
The trustee of a North Dakota trust is a fiduciary and has a duty to administer the trust prudently and only for the benefit of the trustโs beneficiaries. Trustees who manage assets are governed by the โprudent investor rule,โ though that rule may be expanded, restricted, or eliminated by the trust instrument.ย To the extent a North Dakota trust is revocable, the trusteeโs duties are owed exclusively to the settlor.ย
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 ownerโs declaration that identifiable property is held as trustee, or by exercising a power of appointment in favor of a trustee.ย ย
Most North Dakota trusts are evidenced by a written trust instrument that is signed by the settlor and sets forth the trustโs 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 trustsโsuch as trusts relating to real estateโmust be evidenced in writing.
Although the general rule is that creditors of a trustโs beneficiaries may attach a beneficiaryโs interest in the trust, North Dakota law recognizes โspendthrift provisions,โ 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 beneficiaryโs interest in the trust.ย
Creditors of a North Dakota revocable trustโs settlor can attach trust assetsโduring the settlorโs life or through a claim against the settlorโs estateโas if assets had not been transferred to the trust.ย A settlorโs creditors can attach assets held in an irrevocable trust (other than special needs trusts) to the extent property could be distributed for the settlorโs benefit.
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 orโif the trust instrument does not specify a methodโthrough a later will or codicil or another method that clearly manifests the settlorโs intent to revoke or modify the trust.ย
North Dakota trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purposes become unlawful or impossible to achieve.ย A trust may also be terminated or modified by a court upon the petition of the settlor, trustee, and/or beneficiaries.ย In some circumstances, modification or termination of a trust may be made upon the consent of all beneficiaries.ย A court may also modify a North Dakota trust to conform to the settlorโs intentions, to achieve the settlorโs tax objectives, or if the trust has become uneconomical to administer.
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Estate Taxes: North Dakota does not impose either estate or inheritance taxes.ย Large North Dakota estates may still be liable for federal estate taxes.
Simplified Probate:ย 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 lawโsuch as the successorโs relationship to the decedent, the basis of the right to recover the property, and the status of any personal representative appointment.ย ย
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 beneficiariesโwith less formality than the ordinary probate process.
Non-Probate Transfers: Along with living trusts, North Dakota provides several additional options for transferring assets outside probate.ย Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death. North Dakota does not recognize tenancy by the entiretiesโa form of co-ownership between spouses recognized in many other states.ย ย
POD (payable-on-death) and TOD (transfer-on-death) designationsโwhich provide for automatic transfer of an asset to a named beneficiary upon the ownerโs deathโcan also be used for many North Dakota assets.ย For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย North Dakota is among the states that authorize transfer-on-death deeds for real estate (also called โTOD deedsโ or โbeneficiary deedsโ). Ownership of real property subject to a TOD deed automatically transfers to the named beneficiary upon the ownerโs 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 ownerโs death.
North Dakota does not recognize TOD designations on vehicle titles.
Spousal Shares: To avoid spousal disinheritance, North Dakota law grants a surviving spouse a right to an elective share of one-half of the deceased spouseโs โaugmented estate,โ even if the decedentโs will provides differently. The augmented estate includes the decedentโs net probate estate, the value of certain non-probate transfers (e.g., property co-owned in joint tenancy or with a POD designation), and the value of certain of the surviving spouseโs property.ย ย
North Dakotaโs spousal elective share is in addition to any allowances and exemptions to which a surviving spouse is entitled. North Dakota provides for a supplemental elective share up to $75,000 if the surviving spouseโs interest in the estate is less than $75,000.
If a North Dakota decedent is intestate, the surviving spouseโs intestate share is the entire estate if the decedent leaves no surviving parents or descendants. The surviving spouse also receives the entire estate if all surviving descendants of the decedent and of the surviving spouse are descendants of both (i.e., neither spouse has a descendant not descended from the other). Otherwise, the surviving spouseโs intestate share is as follows:
- If the deceased spouse leaves a surviving parent and no surviving descendants, the surviving spouseโs share is $300,000, plus ยพ of the balance.ย
- If all the deceased spouseโs descendants are also descendants of the surviving spouse but the surviving spouse has other descendants, the surviving spouseโs share is $225,000, plus one-half of the balance.ย
- If the deceased spouse leaves surviving descendants who are not also the surviving spouseโs descendants, the surviving spouseโs share is $150,000, plus one-half of the balance.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
