Once the testator dies, a person having custody over the Will must deliver the original to a person who can secure probate or to the appropriate court. The handover must be done with reasonable promptness; otherwise they may be liable to any aggrieved person who has sustained damage as a result of the delay. If the custodian refuses to hand over the Will, they risk being penalized for contempt of court (30.1-11-02).
Probate of a North Dakota Will can be done informally together with informal appointment of a personal representative (30.1-14-01). The necessary forms are provided by the court. No notice is required with informal proceedings.
If the Will has been lost, destroyed (without revocation) or is otherwise unavailable, then formal testacy proceedings will need to be started in order to prove the Will. (30.1-15-02.1). If there is any other question as to whether the decedent left a valid North Dakota Last Will & Testament or any objections, then these must also be litigated via formal testacy proceedings.
An interested person has the right to start formal testacy proceedings and petition for any of the following orders (30.1-15-02.):
- To formally probate a Will, even if the same document or a conflicting North Dakota Will has been informally probated;
- To appoint a personal representative;
- To set aside or prevent an informal probate of a Will;
- An adjudication that the decedent died intestate (without a Will), with orders to appoint an administrator in intestacy.
North Dakota Estate Tax
Whilst the state does not impose an inheritance tax, North Dakota still has an estate tax. The calculation is based on the gross estate, limited to the federal credit for state death taxes.
If the gross estate meets the federal estate tax return filing requirement, then the personal representative must file a North Dakota estate tax return (form 54-91) and, if there is tax due, a situs affidavit (form 54.29). The return must be filed with the office of state tax commissioner for North Dakota within 15 months of the death.