Probate is the legal process that follows a person’s death. When you die, for instance, you will leave behind an estate that consists of all assets you own and in which you have a legal interest at the time of your death. The law has a vested interest in making sure all your estate assets are accounted for and legally transferred to the new owners. In addition to effectuating the transfer of estate assets, probate also serves several other important functions, including:
- Authenticating the decedent’s Will (if applicable)
- Notifying creditors of the estate and allowing them the opportunity to file a claim
- Litigating challenges to the Will
- Ensuring that taxes are paid
Almost all estates are required to go through some type of probate; however, formal probate may not be required if the estate does not involve valuable and/or complex assets. Like most states, North Dakota offers an informal administration alternative for small estates.
One of the first things that occurs during the probate process is to categorize all assets as probate or non-probate assets. Non-probate assets are not included in the probate of the estate and, therefore, are transferred to beneficiaries immediately after the decedent’s death. Common examples of non-probate assets include:
- Assets held in a trust
- Certain types of jointly held property
- Life insurance proceeds
- Funds held in an account designated as “payable on death(POD)” or “transfer on death (TOD)”
- Certain funds held in retirement or pension accounts
When a decedent left behind a Last Will and Testament it is referred to as a “testate” estate. When no Will was left behind, the estate is referred to as an “intestate” estate. In a testate estate administration, the terms of the decedent’s Will dictate how the estate assets are distributed. In an intestate estate administration, the North Dakota intestate succession laws determine what happens to the estate assets. In that case, only close family members and./or a spouse inherit from the estate as a general rule.
If the decedent dies testate, the individual named by the decedent in his/her Will to be the Executor of the Will is the individual who will oversee the probate process. In an intestate estate administration, any competent adult may volunteer to be the Personal Representative of the estate and oversee the probate process. If no one volunteers, the court will appoint someone, usually a local attorney.
Although the probate of every estate is unique, there are some common steps that occur in most probate processes, including:
- Opening probate by submitting the decedent’s original Will, along with a petition to open probate, in the appropriate court. Typically, probate occurs in the county in which the decedent was a resident at the time of death.
- Identifying, locating, valuing all estate assets. This may require the assistance of professional appraisers.
- Identifying and locating heirs of the estate in an intestate estate.
- Notifying creditors that the estate is being probated. Creditors then have a statutory time frame within which to file a claim.
- Approval or denial of claims after review by the Executor or PR. If approved, claims are paid out of estate assets.
- Preparing, filing, and paying federal gift and estate taxes.
- Preparing the necessary legal documents to transfer the remaining assets to the intended beneficiaries and/or legal heirs of the estate.
Any “interested” person may challenge the validity of a Will submitted for probate. This typically means a beneficiary, heir, or creditor. Contrary to popular belief, an individual cannot contest a Will simply because the individual is not happy with his/her inheritance (or lack thereof). A Will contest must allege, and eventually prove, a legal ground on which the Will could be declared invalid, such as fraud, lack of capacity at the time of execution, duress, or undue influence. Once filed, the challenge must be litigated. The Executor will defend the Will submitted for probate. Ultimately, if the contestant is successful, the Will is declared invalid and the court looks for another valid Will to use to probate the estate. If no valid Will is located, the estate is probated using the intestate succession rules. If the contestant is unsuccessful, probate resumes using the Will initially submitted.