Making a will is an essential first step in estate planning. A North Dakota will helps to protect your loved ones and your property after you die. You get a say in who manages your estate, who receives your assets, and who cares for your minor children. But how do you make a valid will in North Dakota? We have the answers to your frequently asked questions.
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What If I Die Without a Will in North Dakota?
If you die without a will, you die “intestate.” A North Dakota probate court follows state intestacy laws to distribute your estate. A decedent’s estate typically goes to their family members and next of kin. However, under intestate succession laws, there may be unintended consequences. For example, if you have a partner but are not married or have stepchildren you did not yet adopt, they may not receive any of your assets.
And if the state can’t locate your next of kin, North Dakota keeps your estate assets.
What Does a Will Do?
A North Dakota last will and testament allows you to control your estate. You leave instructions on property distribution and care for your family members. In your will, you can also do the following:
- Name a personal representative or executor to handle your estate. They locate your will and assets, submit the will to the probate court, and follow the instructions in your will to distribute your estate
- Identify and give away specific items of your personal property and real property (real estate)
- Name loved ones and family members as beneficiaries to inherit the rest of your property
- Name guardians for your young children, if necessary
- Name caregivers for pets, if necessary
- Make gifts to charitable organizations
Because you made these decisions in your will, you streamline the probate process, saving time and court fees.
What Doesn’t a Will Do?
Your will transfers many kinds of property, but not all your assets. For example, some assets transfer through beneficiary designations or according to the terms of their legal documents. These are known as non-probate assets and go to your named beneficiaries. Some non-probate assets may include:
- Funds in payable-on-death or transfer-on-death bank and investment accounts
- Proceeds from life insurance policies or annuities (to named beneficiaries)
- Retirement accounts, pensions, 401(k)s, IRAs, and Keoghs
- Property owned under joint tenancy with right of survivorship
- Property owned by living trusts or irrevocable trusts
It is a good idea to name a beneficiary and a backup beneficiary in case your primary beneficiary dies before you. Any account or policy without a named beneficiary goes into your probate estate. Having named beneficiaries on all your non-probate accounts and assets keeps them out of probate.
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Who Can Make a Will in North Dakota?
A person making a will is known as a “testator.” The state of North Dakota has a few requirements for who can qualify to make a will.
- Age: A testator must be 18 years of age or older.
- Sound Mind: A testator must have a sound mind meaning the testator knows what property they own, who their natural heirs are, and how they want to distribute their property.
The test of a sound mind is at the time the testator makes and signs their will. North Dakota residents with concerns about if they can make a will should consult with an estate planning attorney for legal advice.
Does North Dakota Have a Statutory Will?
No. North Dakota does not have a statutory will. You may make your own will or hire an attorney. Many people looking for self-help resources use Trust & Will to draft a will conforming to North Dakota law.
What Types of Wills Does North Dakota Accept?
Generally, most testators type or print their will and sign before witnesses. However, there are other ways to make a will that may or may not be acceptable in North Dakota.
- Handwritten Will: A handwritten or holographic will is one entirely written and signed by the testator without witnesses. North Dakota only accepts holographic wills of this type if the signature and material portions of the document are in the testator’s handwriting.
- Oral Will: An oral or spoken will, called a nuncupative will, is not valid in North Dakota. All wills must be in writing.
- Electronic Will: An electronic will is a will written and stored electronically or signed, witnessed, or notarized through electronic means. North Dakota allows electronic wills.
The tried-and-true method for making a will is typing or printing your will and signing it in front of two witnesses and a notary. Preparing a will in this manner protects against challenges to your will regarding its validity.
Can I Make My Own Will in North Dakota?
Yes. You do not have to use an attorney to draft your will. If you have a simple estate, know what property you own and who you want to receive the property, then you are ready to make your will. A benefit of using an online will drafting service such as Trust & Will is that you can easily update it. For example, if there is a beneficiary’s death, birth of a child, or divorce, you can revoke your original will and create a new one without having to make an amendment or codicil.
How Do I Make My Will Valid in North Dakota?
To make sure your will is valid in North Dakota, you must comply with the state law. Your will should meet the following requirements:
- Signature: The testator must sign their will or direct someone to sign for them in the testator’s conscious presence.
- Witnesses: Two competent witnesses must sign the will in the testator’s presence. A competent witness is someone who can testify in court. Avoid using interested witnesses, which is a witness that benefits from your will. Although using interested witnesses in North Dakota does not invalidate your will or the gift to them, your will may face challenges based on undue influence.
- Notary: North Dakota allows a notary public to attest to the testator’s signature on the will. If you use a notary, you do not need two witnesses.
- Self-Proving Affidavit: You may consider a self-proving affidavit which is a statement you and your witnesses sign attesting that you signed the will properly. This signed and notarized affidavit makes a self-proved will, so your witnesses do not have to testify in court as to the will’s authenticity.
Can I Disinherit My Spouse in North Dakota?
No. Unless they waive their rights to your estate through a pre-marital agreement, you cannot disinherit your spouse. In North Dakota, a surviving spouse may claim an elective share of your estate. An elective share is part of a decedent’s estate that a spouse may claim if left out of the will. Your spouse may also occupy the homestead, receive a reasonable family allowance, and share in certain exempt personal property.
Can I Disinherit My Children in North Dakota?
Your children do not have a right to inherit from you. If you want to disinherit a child, you should state it expressly in your will with your reasons for doing so; otherwise, a court may determine that you left out your child’s name by mistake.
What Estate Planning Documents Should I Have in North Dakota?
While a will is helpful during probate proceedings after you die, there are other estate planning documents to help you and your family during your lifetime.
- Power of Attorney. In a power of attorney document, you name someone you trust as your agent to handle your financial matters. They have a fiduciary duty to act in your best interest. You may do this for convenience if you travel frequently or only when you are incapacitated and can’t manage your finances. You decide what powers to grant and when the power of attorney begins and ends.
- Health Care Directive. A health care directive or living will or allows you to specify what life-sustaining measures you want or don’t want when you have an end-stage illness or terminal condition. You may also name someone to receive your medical information and make healthcare decisions if you cannot.
Fortunately, making a valid will and creating other North Dakota estate planning documents is easy with online estate planning templates.