North Dakota State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

  • North Dakota Century Code
  • Probate jurisdiction rests with the County Court
  • Probate laws are primarily under Title 30 and Title 31

Minimum age requirement to:

  • Distribute property by will: 18 (30.1-08-01)
  • Which minor gets property: 21

Holographic will recognized:

  • Not recognized (No Section exists)

State taxes:

  • Estate tax: Equal to federal credit for state death taxes (Section 57-37.1-02 and 57-37.1-04)
  • State gift tax:Inheritance tax: No inheritance tax (Section 57-37.1-02 and 57-37.1-04)
    • No state gift tax (Section 57-37.1-02 and 57-37.1-04)
    • Anatomical Gift Act (Section 23-06.2-01)
  • Inheritance tax: No inheritance tax (Section 57-37.1-02 and 57-37.1-04)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 30.1-04-02 to 30.1-04-03)

  • No surviving spouse, but there are surviving children:
    • All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
  • Surviving spouse and
    • Children of surviving spouse:
      • All of your estate will pass to your spouse
      • Children not of the surviving spouse (for example your children from a previous marriage):
        • $150,000 and one-half (1/2) of your estate will pass to surviving spouse, and
        • the other one-half (1/2), split equally among the surviving children or to their children in accordance to their per stirpes share
        • No children and both of your parents of deceased:
          • All of your estate will pass to your spouse
          • No children, but at least one of your parents survives you:
            • $200,000 and three-fourths (3/4) of your estate to your surviving spouse, and
            •  the other one-fourth (1/4), split equally among the surviving parents
  • At least one parent survives you, but no surviving spouse or children:
    • All of your estate will pass to your surviving parents equally
  • No spouse, children, or parents:
    • Siblings (brothers and sisters) equally or to their children according to their per stirpes share. If none, then one-half (1/2) to your maternal next of kin and the other one-half (1/2) to your paternal next of kin

Who must be named as a beneficiary in your will:

  • Surviving spouse (Section 30.1-06-02), andChildren, born or adopted (Section 30.1-06-01)
    • Surviving spouse must be given:
      • One-third (1/3)of your “augmented” estate; “augmented” usually includes both the property that passes under the will and any other property that passes by other “non-will” transfers, e.g. under a living trust or joint tenancy arrangement; see statute for more details on “augmented” (Section 30.1-05-01)
  • Children, born or adopted (Section 30.1-06-01)

Effects of changes in your marital status on your will:

  • You are divorced from the surviving spouse:
    • Revokes will as to divorced spouse (Section 30.1-10-02)
  • You get married without changing your will that does not provide for your new spouse:
    • Spouse is still entitled to their statutory shares under state intestate law (Section 30.1-06-01)


  • Minimum number of witnesses required: Two (Section 30.1-08-02)
  • Are witnesses allowed to be beneficiaries?: Yes (Section 30.1-08-05)
  • Requirements to be a witness, witnesses must:
    • be an adult or a notary,
    • not have any claims against your estate,
    • not be related to you by blood or marriage,
    • not your doctor
    • not be entitled to anything in your will,
    • not be finically responsible for your healthcare, and
    • if you are currently living in a nursing home or other similar long-term care facility, then one of your witnesses must be one of the following:
      • member of the clergy, e.g. minister, priest, rabbi, etc.
      • an attorney licensed to practice law in North Dakota,
      • person designated by the Department of Human Services, or
      • county court for the county in which the long-term care facility is located

Property ownership (Section 47-02-06):

  • Common law state
  • Bank account deposits held jointly are payable to any survivor named in the bank account
  • Tenancy by the entirety is not recognized in this state
  • Tenancy in common and joint tenancy are recognized in this state

Other types of wills:

  • Self-proving wills recognized: Yes, recognized (Section 30.1-08-04)
  • Living will: Declaration (Section 23-6.4). Requires certification in writing by two physicians that you are in a terminal condition and death will occur within a relatively short period of time without life-sustaining medical care
  • Power of Attorney for Health Care (Section 23-06.5)
  • Durable Power of Attorney (Section 30.1-30)