Most people end up involved in the probate of an estate at some point in their life for one reason or another. In your case, you might find that someone appointed you as the Executor of their estate or you might volunteer to be the Personal Representative of an estate in which the decedent died intestate (without leaving behind a Last Will and Testament). You could also be involved in the probate process because you are a beneficiary or heir of an estate or even because you are a creditor. The first time you encounter the probate process it can be somewhat daunting – not to mention intimidating. Although even estate is unique, making every probate process equally unique, there are some common steps that occur during the probate of most estates. If you are involved in the probate of an estate in North Dakota, it may help you to read through the following 10 steps in the North Dakota probate process to familiarize yourself with the general process ahead of time.
Probate Basics – What Is Probate and Why Is It Required?
Before discussing the steps of the probate process, you need to know what probate is and why most estates are required to go through it. When an individual dies, he or she leaves behind an estate that is made up of all assets the decedent owned at the time of death or in which the decedent had any ownership interest. Before those assets can be passed on to the intended beneficiaries or heirs of the estate, the law requires an accounting of those assets. In addition, creditors of the estate must be given the opportunity to file claims against the estate and all state and federal taxes must be paid before assets can be transferred out of the estate. All of this happens during the probate process.
10 Steps in the North Dakota Probate Process
- Deciding if the estate is an intestate or testate estate. If the decedent left behind a Last Will and Testament the estate is referred to as a “testate” estate. If no Will was executed by the decedent it is an “intestate” estate. In a testate estate the terms of the decedent’s Will dictate how the estate is handled whereas in an intestate estate the North Dakota intestate succession laws will determine what happens to the estate assets.
- Opening probate. In a testate estate the person appointed as the Executor of the estate petitions to open probate. In an intestate estate, any adult may open probate and volunteer to be the Personal Representative of the estate.
- Official appointment of Executor/PR. The court must officially appoint someone to oversee the entire probate process. If an Executor was appointed by the decedent the court almost always confirms that appointment. In an intestate estate someone must volunteer or the court will appoint someone – usually a local attorney.
- Locating, securing, inventorying estate assets. The Executor/PR must identify, locate and secure all estate assets and then create an inventory for the court in most cases.
- Valuing estate assets. A date of death value must be obtained for all estate assets. This often requires retaining the assistance of professional appraisers.
- Notifying creditors. Known creditors may be notified personally; however, unknown creditors are notified via publication in a local newspaper.
- Reviewing and paying creditor claims. The Executor/PR must review all claims submitted by creditors. Approved claims are paid out of estate assets. If insufficient liquid assets are available, estate assets must be sold and the proceeds used to pay creditors.
- If a Will contest is filed, the Executor must defend the Will submitted for probate. The probate process effectively comes to a halt until the issue is litigated because the manner in which the estate is probated will depend on the outcome.
- Paying estate taxes. If any federal gift and estate taxes are due from the estate they must be paid before probate can be wrapped up.
- Distributing assets to beneficiaries/heirs. Finally, all remaining estate assets are transferred to the intended beneficiaries and/or heirs of the estate.
If you have additional questions about the North Dakota probate process, or you are in need of assistance during the probate of an estate in which you are involved in the State of North Dakota contact the experienced estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.