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30.1-14 Informal Probate and Appointment Proceedings

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Download pdfLoading PDF...var pdf_url = 'http://law.justia.com/codes/north-dakota/2009/t301/pdf/t301c14.pdf';$(document).ready(function() {var embedwindow = $("#embed_document");if ($.browser.msie){embedwindow.html('');} else {embedwindow.html('');}});CHAPTER 30.1-14INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS30.1-14-01. (3-301) Informal probate or appointment proceedings - Application -Contents.1.Applications for informal probate or informal appointment shall be directed to thecourt, and verified by the applicant to be accurate and complete to the best of theapplicant's knowledge and belief as to the following information:a.Every application for informal probate of a will or for informal appointment of apersonal representative, other than a special or successor representative, shallcontain the following:(1)A statement of the interest of the applicant.(2)The name and date of death of the decedent, the decedent's age, andthe county and state of domicile at the time of death, and the names andaddresses of the spouse, children, heirs, and devisees, and the ages ofany who are minors so far as known or ascertainable with reasonablediligence by the applicant.(3)If the decedent was not domiciled in the state at the time of death, astatement showing venue.(4)A statement identifying and indicating the address of any personalrepresentative of the decedent appointed in this state or elsewherewhose appointment has not been terminated.(5)A statement indicating whether the applicant has received a demand fornotice, or is aware of any demand for notice of any probate orappointment proceeding concerning the decedent that may have beenfiled in this state or elsewhere.(6)A statement that the time limit for informal probate or appointment underthis chapter has not expired because three years or less have elapsedsince the decedent's death, or, if more than three years from the deathhave elapsed, circumstances described in section 30.1-12-08 haveoccurred authorizing tardy probate or appointment.b.An application for informal probate of a will shall state the following, in additionto the statements required by subdivision a:(1)That the original of the decedent's last will is in the possession of thecourt, or accompanies the application, or that an authenticated copy of awill probated in another jurisdiction accompanies the application.(2)That the applicant, to the best of the applicant's knowledge, believes thewill to have been validly executed.(3)That after the exercise of reasonable diligence, the applicant is unawareof any instrument revoking the will, and that the applicant believes thatthe instrument which is the subject of the application is the decedent'slast will.c.An application for informal appointment of a personal representative toadminister an estate under a will shall describe the will by date of execution andstate the time and place of probate or the pending application or petition forPage No. 1probate.The application for appointment shall adopt the statements in theapplication or petition for probate and state the name, address, and priority forappointment of the person whose appointment is sought.d.An application for informal appointment of an administrator in intestacy shallstate, in addition to the statements required by subdivision a:(1)That after the exercise of reasonable diligence, the applicant is unawareof any unrevoked testamentary instrument relating to property having asitus in this state under section 30.1-02-01, or, a statement why any suchinstrument of which the applicant may be aware is not being probated.(2)The priority of the person whose appointment is sought and the names ofany other persons having a prior or equal right to the appointment undersection 30.1-13-03.e.An application for appointment of a personal representative to succeed apersonal representative appointed under a different testacy status shall refer tothe order in the most recent testacy proceeding, state the name and address ofthe person whose appointment is sought and of the person whose appointmentwill be terminated if the application is granted, and describe the priority of theapplicant.f.An application for appointment of a personal representative to succeed apersonal representative who has tendered a resignation as provided insubsection 3 of section 30.1-17-10, or whose appointment has been terminatedby death or removal, shall adopt the statements in the application or petitionwhich led to the appointment of the person being succeeded except asspecifically changed or corrected, state the name and address of the personwho seeks appointment as successor, and describe the priority of the applicant.2.By verifying an application for informal probate or informal appointment, theapplicant submits personally to the jurisdiction of the court in any proceeding forrelief from fraud relating to the application, or for perjury, that may be institutedagainst the applicant.30.1-14-01.1.Duty of court to provide forms to an applicant - Assistance ofattorney not required.The court shall provide the necessary forms to an applicant whorequests aid in using the informal probate or appointment procedure. The forms and explanatorymaterials must be prepared by the state court administrator and provided at cost.Theassistance of an attorney is not required for informal probate or appointment procedure.30.1-14-02. (3-302) Informal probate - Duty of court - Effect of informal probate.Upon receipt of an application requesting informal probate of a will, the court, upon making thefindings required by section 30.1-14-03, shall issue a written statement of informal probate if atleast one hundred twenty hours have elapsed since the decedent's death. Informal probate isconclusive as to all persons until superseded by an order in a formal testacy proceeding. Nodefect in the application or procedure relating thereto which leads to informal probate of a willrenders the probate void.30.1-14-03. (3-303) Informal probate - Proof and findings required.1.In an informal proceeding for original probate of a will, the court shall determinewhether:a.The application is complete.b.The applicant has made oath or affirmation that the statements contained in theapplication are true to the best of the applicant's knowledge and belief.Page No. 2c.The applicant appears from the application to be an interested person asdefined in subsection 25 of section 30.1-01-06.d.On the basis of the statements in the application, venue is proper.e.An original, duly executed, and apparently unrevoked will is in the court'spossession.f.Any notice required by section 30.1-13-04 has been given and that theapplication is not within section 30.1-14-04.g.It appears from the application that the time limit for original probate has notexpired.2.The application must be denied if it indicates that a personal representative hasbeen appointed in another county of this state or, except as provided insubsection 4, if it appears that this or another will of the decedent has been thesubject of a previous probate order.3.A will that appears to have the required signatures and which contains an attestationclause showing that requirements of execution under section 30.1-08-02 or30.1-08-06 have been met must be probated without further proof. In other cases,the court may assume execution if the will appears to have been properly executed,or the court may accept a sworn statement or affidavit of any person havingknowledge of the circumstances of execution, whether or not the person was awitness to the will.4.Informal probate of a will that has been previously probated elsewhere may begranted at any time upon written application by any interested person, together withdeposit of an authenticated copy of the will and of the statement probating it from theoffice or court where it was first probated.5.A will from a place which does not provide for probate of a will after death and whichis not eligible for probate under subsection 1 may be probated in this state uponreceipt by the court of a duly authenticated copy of the will and a duly authenticatedcertificate of its legal custodian that the copy filed is a true copy and that the will hasbecome operative under the law of the other place.30.1-14-04. (3-304) Informal probate - Unavailable in certain cases. Applications forinformal probate which relate to one or more of a known series of testamentary instruments,other than a will and one or more codicils to the will, the latest of which does not expresslyrevoke the earlier, must be declined.30.1-14-05. (3-305) Informal probate - Court not satisfied. If the court is not satisfiedthat a will is entitled to be probated in informal proceedings because of failure to meet therequirements of sections 30.1-14-03 and 30.1-14-04, or for any other reason specified by law, itmay decline the application. A declination of informal probate is not an adjudication and does notpreclude formal probate proceedings.30.1-14-06. (3-306) Informal probate - Notice requirements. The moving party mustgive notice, as described in section 30.1-03-01, of the moving party's application for informalprobate to any person demanding it pursuant to section 30.1-13-04, and to any personalrepresentative of the decedent whose appointment has not been terminated. No other notice ofinformal probate is required.30.1-14-07. (3-307) Informal appointment proceedings - Delay in order - Duty ofcourt - Effect of appointment.Page No. 31.Upon receipt of an application for informal appointment of a personal representativeother than a special administrator as provided in section 30.1-17-14, if at least onehundred twenty hours have elapsed since the decedent's death, the court, aftermaking the findings required by section 30.1-14-08, shall appoint the applicantsubject to qualification and acceptance. If the decedent was a nonresident, the courtshall delay the order of appointment until thirty days have elapsed since deathunless the personal representative appointed at the decedent's domicile is theapplicant or unless the decedent's will directs that the estate be subject to the lawsof this state.The court must make its order of appointment and issue letterstestamentary or letters of administration within ten working days after allrequirements for informal proceedings have been met.2.The status of personal representative and the powers and duties pertaining to theoffice are fully established by informal appointment. An appointment, and the officeof personal representative created thereby, is subject to termination as provided insections 30.1-17-08 through 30.1-17-12, but is not subject to retroactive vacation.30.1-14-08.(3-308) Informal appointment proceedings - Proof and findingsrequired.1.In informal appointment proceedings, the court shall determine whether:a.The application for informal appointment of a personal representative iscomplete.b.The applicant has made oath or affirmation that the statements contained in theapplication are true to the best of the applicant's knowledge and belief.c.The applicant appears from the application to be an interested person asdefined in subsection 25 of section 30.1-01-06.d.On the basis of the statements in the application, venue is proper.e.Any will to which the requested appointment relates has been formally orinformally probated, but this requirement does not apply to the appointment of aspecial administrator.f.Any notice required by section 30.1-13-04 has been given.g.From the statements in the application, the person whose appointment issought has priority entitling the person to the appointment.2.Unless section 30.1-17-12 controls, the application must be denied if it indicates thata personal representative who has not filed a written statement of resignation asprovided in subsection 3 of section 30.1-17-10 has been appointed in this or anothercounty of this state, that, unless the applicant is the domiciliary personalrepresentative or the representative's nominee, the decedent was not domiciled inthis state and that a personal representative whose appointment has not beenterminated has been appointed by a court in the state of domicile or that otherrequirements of this section have not been met.30.1-14-09. (3-309) Informal appointment proceedings - Court not satisfied. If thecourt is not satisfied that a requested informal appointment of a personal representative shouldbe made because of failure to meet the requirements of sections 30.1-14-07 and 30.1-14-08, orfor any other reason, it may decline the application. A declination of informal appointment is notan adjudication and does not preclude appointment in formal proceedings.Page No. 430.1-14-10. (3-310) Informal appointment proceedings - Notice requirements. Themoving party must give notice as described by section 30.1-03-01 of the moving party's intentionto seek an appointment informally:1.To any person demanding it pursuant to section 30.1-13-04.2.To any person having a prior or equal right to appointment not waived in writing andfiled with the court.No other notice of an informal appointment proceeding is required.30.1-14-11.(3-311) Informal appointment unavailable in certain cases.If anapplication for informal appointment indicates the existence of a possible unrevokedtestamentary instrument which may relate to property subject to the laws of this state, and whichis not filed for probate in this court, the court shall decline the application.Page No. 5Document Outlinechapter 30.1-14 informal probate andappointment proceedings
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    CHAPTER 30.1-14INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS30.1-14-01. (3-301) Informal probate or appointment proceedings - Application -Contents.1.Applications for informal probate or informal appointment shall be directed to the
    court, and verified by the applicant to be accurate and complete to the best of the
    applicant's knowledge and belief as to the following information:a.Every application for informal probate of a will or for informal appointment of a
    personal representative, other than a special or successor representative, shall
    contain the following:(1)A statement of the interest of the applicant.(2)The name and date of death of the decedent, the decedent's age, and
    the county and state of domicile at the time of death, and the names and
    addresses of the spouse, children, heirs, and devisees, and the ages of
    any who are minors so far as known or ascertainable with reasonable
    diligence by the applicant.(3)If the decedent was not domiciled in the state at the time of death, a
    statement showing venue.(4)A statement identifying and indicating the address of any personal
    representative of the decedent appointed in this state or elsewhere
    whose appointment has not been terminated.(5)A statement indicating whether the applicant has received a demand for
    notice, or is aware of any demand for notice of any probate or
    appointment proceeding concerning the decedent that may have been
    filed in this state or elsewhere.(6)A statement that the time limit for informal probate or appointment under
    this chapter has not expired because three years or less have elapsed
    since the decedent's death, or, if more than three years from the death
    have elapsed, circumstances described in section 30.1-12-08 have
    occurred authorizing tardy probate or appointment.b.An application for informal probate of a will shall state the following, in addition
    to the statements required by subdivision a:(1)That the original of the decedent's last will is in the possession of the
    court, or accompanies the application, or that an authenticated copy of a
    will probated in another jurisdiction accompanies the application.(2)That the applicant, to the best of the applicant's knowledge, believes the
    will to have been validly executed.(3)That after the exercise of reasonable diligence, the applicant is unaware
    of any instrument revoking the will, and that the applicant believes that
    the instrument which is the subject of the application is the decedent's
    last will.c.An application for informal appointment of a personal representative to
    administer an estate under a will shall describe the will by date of execution and
    state the time and place of probate or the pending application or petition forPage No. 1probate.The application for appointment shall adopt the statements in theapplication or petition for probate and state the name, address, and priority for
    appointment of the person whose appointment is sought.d.An application for informal appointment of an administrator in intestacy shall
    state, in addition to the statements required by subdivision a:(1)That after the exercise of reasonable diligence, the applicant is unaware
    of any unrevoked testamentary instrument relating to property having a
    situs in this state under section 30.1-02-01, or, a statement why any such
    instrument of which the applicant may be aware is not being probated.(2)The priority of the person whose appointment is sought and the names of
    any other persons having a prior or equal right to the appointment under
    section 30.1-13-03.e.An application for appointment of a personal representative to succeed a
    personal representative appointed under a different testacy status shall refer to
    the order in the most recent testacy proceeding, state the name and address of
    the person whose appointment is sought and of the person whose appointment
    will be terminated if the application is granted, and describe the priority of the
    applicant.f.An application for appointment of a personal representative to succeed a
    personal representative who has tendered a resignation as provided in
    subsection 3 of section 30.1-17-10, or whose appointment has been terminated
    by death or removal, shall adopt the statements in the application or petition
    which led to the appointment of the person being succeeded except as
    specifically changed or corrected, state the name and address of the person
    who seeks appointment as successor, and describe the priority of the applicant.2.By verifying an application for informal probate or informal appointment, the
    applicant submits personally to the jurisdiction of the court in any proceeding for
    relief from fraud relating to the application, or for perjury, that may be instituted
    against the applicant.30.1-14-01.1.Duty of court to provide forms to an applicant - Assistance ofattorney not required.The court shall provide the necessary forms to an applicant whorequests aid in using the informal probate or appointment procedure. The forms and explanatory
    materials must be prepared by the state court administrator and provided at cost.Theassistance of an attorney is not required for informal probate or appointment procedure.30.1-14-02. (3-302) Informal probate - Duty of court - Effect of informal probate.Upon receipt of an application requesting informal probate of a will, the court, upon making the
    findings required by section 30.1-14-03, shall issue a written statement of informal probate if at
    least one hundred twenty hours have elapsed since the decedent's death. Informal probate is
    conclusive as to all persons until superseded by an order in a formal testacy proceeding. No
    defect in the application or procedure relating thereto which leads to informal probate of a will
    renders the probate void.30.1-14-03. (3-303) Informal probate - Proof and findings required.1.In an informal proceeding for original probate of a will, the court shall determine
    whether:a.The application is complete.b.The applicant has made oath or affirmation that the statements contained in the
    application are true to the best of the applicant's knowledge and belief.Page No. 2c.The applicant appears from the application to be an interested person as
    defined in subsection 25 of section 30.1-01-06.d.On the basis of the statements in the application, venue is proper.e.An original, duly executed, and apparently unrevoked will is in the court's
    possession.f.Any notice required by section 30.1-13-04 has been given and that the
    application is not within section 30.1-14-04.g.It appears from the application that the time limit for original probate has not
    expired.2.The application must be denied if it indicates that a personal representative has
    been appointed in another county of this state or, except as provided in
    subsection 4, if it appears that this or another will of the decedent has been the
    subject of a previous probate order.3.A will that appears to have the required signatures and which contains an attestation
    clause showing that requirements of execution under section 30.1-08-02 or
    30.1-08-06 have been met must be probated without further proof. In other cases,
    the court may assume execution if the will appears to have been properly executed,
    or the court may accept a sworn statement or affidavit of any person having
    knowledge of the circumstances of execution, whether or not the person was a
    witness to the will.4.Informal probate of a will that has been previously probated elsewhere may be
    granted at any time upon written application by any interested person, together with
    deposit of an authenticated copy of the will and of the statement probating it from the
    office or court where it was first probated.5.A will from a place which does not provide for probate of a will after death and which
    is not eligible for probate under subsection 1 may be probated in this state upon
    receipt by the court of a duly authenticated copy of the will and a duly authenticated
    certificate of its legal custodian that the copy filed is a true copy and that the will has
    become operative under the law of the other place.30.1-14-04. (3-304) Informal probate - Unavailable in certain cases. Applications forinformal probate which relate to one or more of a known series of testamentary instruments,
    other than a will and one or more codicils to the will, the latest of which does not expressly
    revoke the earlier, must be declined.30.1-14-05. (3-305) Informal probate - Court not satisfied. If the court is not satisfiedthat a will is entitled to be probated in informal proceedings because of failure to meet the
    requirements of sections 30.1-14-03 and 30.1-14-04, or for any other reason specified by law, it
    may decline the application. A declination of informal probate is not an adjudication and does not
    preclude formal probate proceedings.30.1-14-06. (3-306) Informal probate - Notice requirements. The moving party mustgive notice, as described in section 30.1-03-01, of the moving party's application for informal
    probate to any person demanding it pursuant to section 30.1-13-04, and to any personal
    representative of the decedent whose appointment has not been terminated. No other notice of
    informal probate is required.30.1-14-07. (3-307) Informal appointment proceedings - Delay in order - Duty ofcourt - Effect of appointment.Page No. 31.Upon receipt of an application for informal appointment of a personal representative
    other than a special administrator as provided in section 30.1-17-14, if at least one
    hundred twenty hours have elapsed since the decedent's death, the court, after
    making the findings required by section 30.1-14-08, shall appoint the applicant
    subject to qualification and acceptance. If the decedent was a nonresident, the court
    shall delay the order of appointment until thirty days have elapsed since death
    unless the personal representative appointed at the decedent's domicile is the
    applicant or unless the decedent's will directs that the estate be subject to the laws
    of this state.The court must make its order of appointment and issue letterstestamentary or letters of administration within ten working days after all
    requirements for informal proceedings have been met.2.The status of personal representative and the powers and duties pertaining to the
    office are fully established by informal appointment. An appointment, and the office
    of personal representative created thereby, is subject to termination as provided in
    sections 30.1-17-08 through 30.1-17-12, but is not subject to retroactive vacation.30.1-14-08.(3-308) Informal appointment proceedings - Proof and findingsrequired.1.In informal appointment proceedings, the court shall determine whether:a.The application for informal appointment of a personal representative is
    complete.b.The applicant has made oath or affirmation that the statements contained in the
    application are true to the best of the applicant's knowledge and belief.c.The applicant appears from the application to be an interested person as
    defined in subsection 25 of section 30.1-01-06.d.On the basis of the statements in the application, venue is proper.e.Any will to which the requested appointment relates has been formally or
    informally probated, but this requirement does not apply to the appointment of a
    special administrator.f.Any notice required by section 30.1-13-04 has been given.g.From the statements in the application, the person whose appointment is
    sought has priority entitling the person to the appointment.2.Unless section 30.1-17-12 controls, the application must be denied if it indicates that
    a personal representative who has not filed a written statement of resignation as
    provided in subsection 3 of section 30.1-17-10 has been appointed in this or another
    county of this state, that, unless the applicant is the domiciliary personal
    representative or the representative's nominee, the decedent was not domiciled in
    this state and that a personal representative whose appointment has not been
    terminated has been appointed by a court in the state of domicile or that other
    requirements of this section have not been met.30.1-14-09. (3-309) Informal appointment proceedings - Court not satisfied. If thecourt is not satisfied that a requested informal appointment of a personal representative should
    be made because of failure to meet the requirements of sections 30.1-14-07 and 30.1-14-08, or
    for any other reason, it may decline the application. A declination of informal appointment is not
    an adjudication and does not preclude appointment in formal proceedings.Page No. 430.1-14-10. (3-310) Informal appointment proceedings - Notice requirements. Themoving party must give notice as described by section 30.1-03-01 of the moving party's intention
    to seek an appointment informally:1.To any person demanding it pursuant to section 30.1-13-04.2.To any person having a prior or equal right to appointment not waived in writing and
    filed with the court.No other notice of an informal appointment proceeding is required.30.1-14-11.(3-311) Informal appointment unavailable in certain cases.If anapplication for informal appointment indicates the existence of a possible unrevoked
    testamentary instrument which may relate to property subject to the laws of this state, and which
    is not filed for probate in this court, the court shall decline the application.Page No. 5Document Outlinechapter 30.1-14 informal probate and appointment proceedings

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