Informal Probate Forms

Informal Administration of an Estate

Table of Contents

Introduction

Handling the Small Estate in North Dakota in Informal Proceedings

First-Step - Listing of Property

Safe Deposit Box

Estate Tax

Income Tax

Non-Probate Property

Opening and Probating the Estate

A. Probate Estate $50,000 or Less

B. Probate Estate Greater than $50,000 or Real Property
1. If decedent left will

2. If decedent did not leave a will
C. Priority for Appointment as Personal Representative
Duties of Personal Representative
A. Times within which certain steps must be taken

B. Times after which certain steps may be taken

C. Times after which certain steps cannot be taken
Distribution of the Estate
A. If a Will

B. If no Will
Closing the Estate

Appendix A
Time Schedule Informal Probate Proceedings

Times after which certain steps may be taken

Times within which certain steps must be taken

Times after which certain steps cannot be taken
Appendix B
Checklist of Forms

Forms for estate less than $50,000, no real property

Forms for estate greater than $50,000 with a will

Forms for estate greater than $50,000 no will
Appendix C
Glossary of Terms

Introduction

North Dakota has adopted the Uniform Probate Code, which allows a person to informally probate a Will and have a personal representative appointed without the necessity of a court appearance or a court hearing, as long as the proper forms are filed and the correct procedures followed.

The purpose of this brochure is to help North Dakota citizens understand the procedures that must be followed and forms that must be filed with regard to the informal probate of a Will and/or the appointment of a personal representative of an estate of a deceased citizen. Since each estate has different needs, it is important to know the proper methods of managing a particular estate. The information in this brochure should assist in selecting and filing the correct forms with the court in order to informally administer an estate and to have, if needed, a personal representative appointed. The necessary probate forms may be purchased from the district court or obtained online below at the Checklist of Forms. The North Dakota tax forms are available from the State Tax Commissioner, State Capitol, Bismarck. The federal income and estate tax forms are available from your local IRS office and on the internet.

This brochure has limitations. It cannot address every legal question that could arise in a particular estate, nor does it cover all the responsibilities and liabilities of the personal representative and/or the heirs, such as the filing of income tax returns. Matters not properly handled could create problems and expense for the estate and the heirs if they must be dealt with after the estate is initially closed.

Therefore, since each estate, no matter how small, can raise many serious legal questions, you are advised that you are proceeding at your own risk. The law forbids the district court judge or court personnel to give legal advice on how to administer an estate. In legal matters, you should exercise caution and good judgment in proceeding without the advice of an attorney.

References to N.D.C.C. or in [ ] mean the North Dakota Century Code. The Century Code is available at most public and university libraries and at the district court's office in each county.

Handling the Small Estate in North Dakota in Informal Proceedings

First Step - Listing of Property

Most of the work required to be done in an estate is the legal and orderly transfer of the decedent's property to the persons entitled to receive it. The first step to be taken in any estate is to prepare a list (See Fig. A) of all the property owned by the decedent (the person who has died). The value of each item is the fair market value as of the date of the decedent's death.

Figure A:

Chart




















The list should identify the amount of any encumbrance (debt or lien) that exists on any item of property. [N.D.C.C. 30.1-18-06.] All reasonable steps must be taken for the management and protection of the property. [N.D.C.C. 30.1-18-09.]

Safe Deposit Box

A. If a decedent rented a safe deposit box jointly with another person or persons, no court order or affidavit is needed for the other person to access the box.

B. If safe deposit box was rented in decedent's name alone, prepare Affidavit for Access to Safe Deposit Box and present signed Affidavit to bank.

C. On first visit to bank, remove decedent's will. Will is to be filed with the court if the estate needs to be probated.

Estate Tax

A. If total value of estate assets is under $1,000,000(1) and death occurred after December 31, 2001:

1. No estate tax forms or estate tax returns to be filed.

B. If total value of estate assets is $1,000,000(2) or more and death occurred after December 31, 2001:

1. File U.S. Estate Tax Return - Form 706. Forms and instructions available at Internal Revenue Office. To be filed and tax paid nine months after decedent's death. File with Internal Revenue Service, Ogden, Utah 84201.

2. File North Dakota Estate Tax Return - Form 54.91. Forms and instructions available from State Tax Commissioner. File with return:
To be filed and tax paid fifteen months after decedent's death. File with State Tax Commissioner, Estate Tax Examiner, State Capitol, Bismarck, ND 58505.

Income Tax

Estate income tax returns may be required if the estate had gross income of $600 or more for the tax year. Forms and instructions are available from the Internal Revenue Service and State Tax Commissioner.

Non-Probate Property

A. Real property owned by decedent and others as joint tenants is transferred by filing a certified death certificate and property description with the county recorder.

B. Other non-probate property interests are transferred or terminated by presenting a death certificate to the holder.

Opening and Probating the Estate

A. Probate Estate $50,000 or less.

If the total value of the probate property (Fig. A, Columns A and B) less the encumbrances on those items of property is $50,000 or under and no real property is involved [N.D.C.C. 30.1-23-01]:

1. After 30 days have elapsed since decedent's death, prepare Affidavit for Collection of Personal Property (Form 1).

2. Present Affidavit to holder of the personal property for transfer to successor (person entitled to receive it).

B. Probate Estate Greater Than $50,000 or Real Property.

If total value of probate property (Fig. A, Columns A and B) less the encumbrances on those items of property is over $50,000, appoint personal representative to administer the estate and distribute decedent's property to the person or persons entitled to receive it, as follows:

1. If decedent left a Will.

Anytime after five days of decedent's death, file with district court:
a. Application for Informal Probate of Will and Appointment of a Personal Representative (Form 2).

b. Letters Testamentary (Form 4).

c. Statement of Informal Probate of Will and Appointment of a Personal Representative (Form 3).

d. Original Will of decedent.

e. Filing fee of $80.
2. If decedent did not leave a Will, after five days of decedent's death, file with district court:
a. Application for Informal Appointment of Personal Representative in Intestacy (Form 17).

b. Letters of Administration (Form 19).

c. Statement of Informal Appointment of Personal Representative (Form 18).

d. Filing fee of $80.
C. Priority for appointment as personal representative [N.D.C.C. 30.1-13-03].
1. Person or persons nominated in decedent's Will.

2. Alternate person or persons nominated in decedent's Will.

3. The surviving spouse of the decedent who is entitled to receive property of the decedent under the decedent's Will.

4. Other persons entitled to receive property of decedent through the decedent's Will.

5. The surviving spouse of the decedent.

6. Other heirs of the decedent.

7. A trust company.

8. Forty-five days after decedent's death, any creditor.
If the person seeking appointment does not have highest priority, secure a signed Waiver of Appointment (Form 9) from all persons who have a higher or equal right to the appointment. File waivers with the district court along with other appointment documents.

Duties of Personal Representative

No bond is required of a personal representative who is administering an estate under the guidelines of this brochure. However, the personal representative is acting as a trustee of the estate property. If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for loss or damage resulting from the improper conduct.

The duties of a personal representative appear in Chapter 30.1-18 of the North Dakota Century Code. A personal representative must keep accurate records of all receipts and disbursements (Form 14). The personal representative should keep estate property separate from his or her own property until the assets are distributed. Although the assistance of an attorney is not required for informal proceedings, the personal representative should consult with an attorney if uncertain how to proceed.

A. Times within which certain steps must be taken.

1. Within 30 days after appointment, prepare Notice and Information to Heirs and Devisees (Form 5). Send copy to each heir and devisee [N.D.C.C. 30.1-18-05, see also 30.1-14-06].

2. Within six months after appointment or nine months after the death of the decedent, whichever is later, prepare inventory (Form 10). File the original inventory with district court [N.D.C.C. 30.1-18-06]. If the inventory is not filed with the court, mail a copy of the inventory to each of the heirs in an intestate estate or to each of the devisees if a will has been probated, and to any other interested persons who request a copy.

3. After appointment, send Affidavit Forwarding Application to Human Services (Form 7), copy of application for appointment (Form 2 or 17), and a list of surviving joint tenants to the Department of Human Services, State Capitol, Bismarck, ND 58505 [N.D.C.C. 50-06.3-07].

4. Within three months after mailing Notice to Creditors (Form 6) to creditors who are known to the Personal Representative and after first publication of Notice to Creditors, or within three years after decedent's death if notice to creditors has not been published and mailed, creditors must file any claims against the estate [N.D.C.C. 30.1-19-01; N.D.C.C. 30.1-19-03].

5. Within 60 days after the time for original presentation of a claim has expired, if the claim is to be disallowed, it must be disallowed in writing or will be deemed to be approved and must then be paid [N.D.C.C. 30.1-19-06].

6. Within nine months after decedent's death, if filing requirement exists (estate assets of $1,000,000(3) or more), U.S. Estate Tax Return and supporting documents must be filed and tax paid.

7. Within 15 months after decedent's death, if U.S. Estate Tax Return was filed, the N.D. Estate Tax Return and supporting documents must be filed and tax paid [N.D.C.C. 57-37.1-07].

8. Within three years after decedent's death, creditors may file claims in estates in which Notice to Creditors was not published [N.D.C.C. 30.1-19-03].
B. Times after which certain steps may be taken.
1. Any time after appointment of personal representative, Notice to Creditors (Form 6) may be published, but this is not required [N.D.C.C. 30.1-19-01].

2. If Notice to Creditors is published, three months after first publication, personal representative shall proceed to pay claims allowed in the following order of priority [N.D.C.C. 30.1-19-05]:
a. Costs and expenses of administration.

b. Reasonable funeral expenses.

c. Debts and taxes with preference under federal law.

d. Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent.

e. Unpaid child support obligations.

f. Debts and taxes with preferences under other laws of this state.

g. All other claims.
3. After assets have been gathered and all claims paid, the personal representative may distribute remaining assets to the heirs. Personal property is distributed by Personal Representative's Assignment (Form 13). Real property is distributed to heirs or devisees by Personal Representative's Deed of Distribution (Form 11). Real property that is sold by a Personal Representative is transferred by a Personal Representative's Deed (Form 12). Deeds must be recorded along with a certified copy of personal representative's Letters Testamentary (Form 4) or Letters of Administration (Form 19), certified on or after the date of the deed.
C. Times after which certain steps cannot be taken.
1. Three months after first publication of Notice to Creditors, time for filing claims expires. No claims may be filed by creditors after this date [N.D.C.C. 30.1-19-03].

2. Three years after decedent's death - generally no informal proceedings for appointment of personal representative may be commenced [N.D.C.C. 30.1-14-01].

3. Three years after decedent's death - time for filing claims expires in estates in which Notice to Creditors was not published. No claims may be filed by creditors after this date [N.D.C.C. 30.1-19-03].

Distribution of the Estate

Distribution is made as follows:

A. If a Will.

If decedent left a Will, according to the decedent's Will, except:

1. A devisee may renounce in writing devisee's interest under the Will [N.D.C.C. 30.1-10.1].

2. A surviving spouse may elect in writing, within the later of nine months after decedent's death or six months after probate of the Will, to take one-half of the augmented estate regardless of what is specified in the Will. Notice to interested persons and a court hearing are required on the written petition filed with the court and personal representative [N.D.C.C. 30.1-05-01 and 30.1-05-05].
B. If no Will.

If the decedent left no Will, according to N.D. laws of intestate succession, as follows [N.D.C.C. 30.1-04]:

1. If decedent left a surviving spouse, the share of the intestate estate which a surviving spouse receives is [N.D.C.C. 30.1-04-02]:
a. If there are no surviving descendants (such as children or grandchildren) or parent of the deceased or if all of the surviving descendants of the deceased are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent (for example, children from a prior marriage of the surviving spouse), the surviving spouse receives the entire intestate estate.

b. If there are no surviving descendants, but the decedent is survived by a parent or parents, the surviving spouse receives the first $200,000 of the estate assets, plus three-fourths of the balance of the intestate estate.

c. If there are surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and surviving spouse also had descendants who are not descendants of the decedent (i.e., surviving spouse has descendants from a prior marriage), the surviving spouse receives the first $150,000 of the estate assets, plus one-half of the balance of the intestate estate.

d. If there are surviving descendants, one or more of whom are not descendants of the surviving spouse, the surviving spouse receives the first $100,000 of the estate assets plus one-half of the balance of the intestate estate.
2. If part of the intestate estate does not pass to the surviving spouse as listed above, or if there is no surviving spouse, the intestate estate passes as follows:
a. To the descendants of the decedent, who will take by representation.

b. If there are no surviving descendants, to the decedent's parent or parents equally if both survive, or to the surviving parent.

c. If there are no surviving descendants or parent, to the descendants of the decedent's parents or either of them by representation (i.e., decedent's brothers and sisters, then nieces and nephews).

d. If there are no surviving descendants, parent, or descendants of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, by representation; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendants of a grandparent on either the paternal or maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half (i.e., grandparents and then uncles and aunts, and then cousins).
3. An heir may renounce an interest and the surviving spouse make the election as in the estate where there is a Will.

Closing the Estate

A. After the claims have been paid and assets of the estate distributed, the estate is closed as follows:

1. For small estates(4) in which Notice to Creditors has not been published, file Sworn Statement of Personal Representative Closing a Small Estate (Form 16). It may be filed with district court anytime after assets have been distributed [N.D.C.C. 30.1-23-03 and 30.1-23-04].

2. For any size estates in which Notice to Creditors has been published, file Personal Representative's Verified Statement to Close Estate (Form 15). It may be filed with district court anytime after assets have been distributed, but not before three months after the first publication of Notice to Creditors [N.D.C.C. 30.1-21-03].
B. If no proceedings involving the Personal Representative are pending in the court one year after either closing statement is filed, the appointment of the personal representative terminates.

Appendix A:
Time Schedule for Informal Probate Proceedings

Times after which certain steps may be taken:

Five days after decedent's death - informal proceedings may be commenced.

Thirty days after decedent's death - Affidavit for Collection of Personal Property may be prepared and presented.

Anytime after appointment of personal representative - personal representative may publish Notice to Creditors.

Three months after first publication of Notice to Creditors - personal representative shall proceed to pay claims allowed in order of priority.

Three months after first publication of Notice to Creditors - Closing Statement may be prepared and filed by the personal representative at this time if assets are distributed.

Anytime after assets of the estate have been distributed - Closing Statement may be prepared and filed by the personal representative in estates in which Notice to Creditors has not been published.

Times within which certain steps must be taken:

Within thirty days after appointment of personal representative - Notice of Appointment of personal representative must be sent to heirs and devisees.

After appointment of Personal Representative - send copy of Application for Appointment of Personal Representative and list of names of devisees, surviving joint tenants, and heirs to the Department of Human Services.

Within sixty days after the time for original presentation of claim has expired, if claim is to be disallowed, claim must be disallowed in writing or it will be deemed to be approved and must then be paid.

Within three months after first publication of Notice to Creditors - creditors must file any claims against the estate within this time period.

Within six months after appointment of Personal Representative or nine months after the death of the decedent, whichever is later  - inventory must be prepared and copies distributed to heirs/devisees or original filed with district court.

Within nine months after decedent's death - if required, United States Estate Tax Return must be prepared and filed and tax paid.

Within fifteen months after decedent's death - if required, North Dakota Estate Tax Return must be prepared and filed and tax paid.

Within three years after decedent's death - creditors may file claims in estates in which Notice to Creditors has not been published.

Times after which certain steps cannot be taken:

Three months after first publication of Notice to Creditors - time for filing claims expires. No claims may be filed by creditors after this date.

Nine months after decedent's death or six months after probate of decedent's will, whichever occurs last - surviving spouse may no longer petition to take his or her elective share in the augmented estate after these time limits.

Three years after decedent's death - generally no informal proceedings for appointment of personal representative may be commenced.

Three years after decedent's death - time for filing claims expires in estates in which Notice to Creditors was not published. No claims may be filed by creditors after this date.

Appendix B
Checklist of Forms

You may use this sheet to list or check off the most common forms you may need to file in order to administer an estate. These forms can be purchased from any district court or obtained online below. Tax forms may be obtained free from the State Tax Commissioner and Internal Revenue Service.

____ Figure A - Inventory of Decedent's Property

Forms for estate less than $50,000, no real property

____ Form 1 - Affidavit for Collection of Personal Property

Forms for estate greater than $50,000, with a will

____ Form 2 - Application Informal Probate/Appointment of Personal Representative

____ Form 3 - Statement of Informal Probate and Appointment of Personal Representative

____ Form 4 - Letters Testamentary

____ Form 5 - Notice and Information to Heirs & Devisees

____ Form 6 - Notice to Creditors

____ Form 7 - Affidavit Forwarding Applica- tion to Human Services

____ Form 8 - Affidavit for Access to Safe Deposit Box

____ Form 9 - Waiver of Right of Appointment

____ Form 10 - Inventory and Appraisement

____ Form 11 - Personal Representative Deed of Distribution

____ Form 13 - Personal Representative Assignment

____ Form 14 - Record of Receipts & Disbursements

____ Form 15 - Personal Representative Verified Statement to Close Estate

____ Form 16 - Sworn Statement of Personal Representative to Close a Small Estate

Forms for estate greater than $50,000, no will

____ Form 17 - Application for Informal Appointment of Personal Representative in Intestacy

____ Form 18 - Statement of Informal Appointment of Personal Representative

____ Form 19 - Letters of Administration

____ Form 5 - Notice and Information to Heirs and Devisees

____ Form 6 - Notice to Creditors

____ Form 7 - Affidavit Forwarding Petition to Human Services

____ Form 8 - Affidavit for Access to Safe Deposit Box

____ Form 9 - Waiver of Right of Appointment

____ Form 10 - Inventory and Appraisement

____ Form 11 - Personal Representative Deed of Distribution

_____ Form 12 - Personal Representative's Deed (Sale of Real Property)

____ Form 13 - Personal Representative's Assignment

____ Form 14 - Record of Receipts & Disbursements

____ Form 15 - Personal Representative Verified Statement to Close Estate

____ Form 16 - Sworn Statement of Personal Representative to Close a Small Estate

Appendix C
Glossary of Terms

Augmented Estate - The value of the estate reduced by funeral and administration expenses, homestead, and family allowances and exemptions, and enforceable claims to which is added the value of certain specified property transfers and property owned by the decedent's surviving spouse at the decedent's death - see North Dakota Century Code §30.1-05-02(2). The surviving spouse may elect to take one-half of it in lieu of a share in the will or an intestate share.

Bond - A written agreement with an insurance company or other surety that, in the event that the personal representative causes a certain loss to the estate, the insurance company or surety will make up that loss.

Decedent - A deceased person; the person who died.

Devisee - A person who takes the decedent's property through a provision in the Will.

Encumbrance - A claim or liability on property whose value is lessened because of that claim or liability; includes easements, mortgages, liens, etc.

Estate - All the property that the decedent owned or had an interest in on the date of death.

Heir - A person entitled to take the decedent's property according to the laws of intestate succession.

Informal Proceedings - Appointment of personal representative and administration of an estate with limited supervision by the court or notice to interested persons. However, an interested person can apply to the district court for formal proceedings or supervision by the court, in which case the court will determine how to proceed.

Interested Persons - Includes heirs, devisees, children, spouse, creditors, beneficiaries, and any others having a property right in or claim against the estate of a decedent which may be affected by the particular proceeding.

Intestate - A decedent who left no Will.

Intestate Succession - The laws that stipulate who is to take the decedent's property if the decedent dies without a Will or if the decedent's Will does not dispose of all the property.

Issue - A person's lineal descendants of all generations; includes a person's children, grandchildren, great grandchildren, etc.

Joint Tenants - Persons who own property with the equal right to share the property during their lives; on one person's death, the property passes to and is then owned by the survivor or survivors.

Lien - A claim against property to secure a debt.

Non-probate Property - That portion of the decedent's estate that passes automatically, such as to the surviving joint tenant(s) or to a designated beneficiary.

Personal Property - All property other than real property; includes money, stock, automobiles, household furnishings, etc.

Personal Representative - Person or persons appointed by the court to settle and distribute the estate of a decedent.

Probate Property - That portion of the decedent's estate which passes by decedent's Will or by the laws of intestate succession.

Property - Includes both real and personal property or any interest therein, and means anything that may be the subject of ownership.

Real Property - Land and things attached to the land such as buildings.

Security Interest - A claim against property that is held to make sure money is paid or that something is done; includes mortgages, liens, etc.

Successors - Persons, other than creditors, who are entitled to property of a decedent under the decedent's Will or under the laws of intestate succession.

Venue - The proper district court for the filing of the informal proceeding forms and for dealing with any problems that may be raised during the course of administration of the estate.


Footnotes:

1.The estate tax filing threshold will gradually increase to $3.5 million in 2009.
Year of Death Exclusion Amount
2002 and 2003 $1,000,000
2004 and 2005 $1,500,000
2006, 2007, 2008 $2,000,000
2009 $3,500,000

Tax laws are subject to change. Check with state and federal tax offices for current exemptions.

2.See Footnote 1.

3.Increasing to $3,500,000 by 2009. See Footnote 1.

4.See N.D.C.C. 30.1-23-03 for the definition of "small estates".