A last will and testament is an important step in planning the distribution of your estate—real estate, cash, and personal property you own—upon your death. North Dakota wills permit the testator (the person writing the will) to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a North Dakota living will, or healthcare directive, provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do you need a last will and testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent’s (deceased person’s) wishes, it is generally advisable to create a last will and testament.
One of the greatest benefits of having a last will and testament is that it allows the testator—the person creating and signing the will—to choose who will be responsible for carrying out the wishes contained in the will. The person who oversees the will is called the “executor.”
In addition to providing the opportunity to direct asset distribution, a North Dakota last will and testament form also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
North Dakota probate procedures vary according to the value of the estate, but generally the process is simpler for estates valued at less than $50,000.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In North Dakota in the absence of a will, the deceased person’s surviving spouse inherits the entire estate unless either the spouse or the deceased has descendants from other relationships. The deceased’s parents are also entitled to a part of the estate if there is a surviving spouse but no children or descendants.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of their relation to the deceased.
Exceptions to ability to distribute property
Not all property can be distributed according to a will. Some exceptions in North Dakota include the following:
- Property owned in joint tenancy with right of survivorship
- Life insurance policy and retirement account proceeds
- Elective share of spouse if spouse is excluded from the will
Form a last will in North Dakota
The basic requirements for a North Dakota last will and testament include the following:
- Age: The testator must be an “adult.”
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his conscious presence, by his direction.
- Witnesses: A North Dakota will must be signed by at least two individuals, each of whom signed within a reasonable time after witnessing the signing of the will as described above.
- Other witnessing option: A North Dakota law is also valid if acknowledged by the testator before a notary public or another individual authorized by law to take acknowledgements.
- Writing: A North Dakota will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other recognized wills in North Dakota
North Dakota recognizes holographic (handwritten) wills so long as the signature and material portions of the document are in the testator’s handwriting. A holographic will in North Dakota does not have to be witnessed in order to be valid.
Changing a North Dakota last will and testament
A North Dakota will may be changed at any time by codicil, or amendment to the will, which must be executed in the same manner as a will.
Revoking a North Dakota last will and testament
The revocation of a North Dakota will can be accomplished by executing a subsequent will or by performing a revocatory act (including “burning, tearing, canceling, obliterating, or destroying”) on the document or any part of it, done with the intent to revoke the will by either the testator or by someone else at his direction in his conscious presence.
When you are ready to make a last will of your own, LegalZoom can help. We can help you start a last will online in three easy steps.
Find out more about Last Wills