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Get a Better Understanding of What Wills Are, What They Do,

and How They Fit Into an Estate Plan

FACTS ABOUT WILLS

IN NORTH DAKOTA

RAYMOND J GERMAN NORTH DAKOTA ESTATE PLANNING ATTORNEY

German Law Group Facts About Wills in North Dakota 2

Most people know what a will is, but fewer know what you can do with a will or

what’s involved in creating these important legal documents. Wills form an

essential piece of every estate plan. Even though your plan might include other

elements that play a larger role, a will is still a necessity. To get a better

understanding of what wills are, what they do, and how they fit into an estate

plan, we’ve assembled this list of facts.

WILLS AND INTESTACY

The primary purpose of a last will and testament—the more formal name for a

will—is to state your preferences about how your property will be distributed

after you die. When you die and leave behind any kind of property—called an

estate—someone else will have to become the new owner. The law allows you to

choose how to distribute your estate by creating a will and stating your

inheritance choices. Though there are other methods available for accomplishing

this goal, you must use a will to distribute any property you own as an individual.

If you don’t make a will, the individual property you leave behind will still have to

be distributed to new owners after you’re gone. But who inherits that property if

you haven’t made your wishes known?

Dying without a will is known as dying intestate. When this happens, state laws

decide who the new owner of the decedent’s property becomes. Though these

intestacy laws differ between states, they are generally similar, and give property

to the decedent’s closest surviving relatives.

For example, North Dakota’s intestacy laws (North Dakota Century Code section 30.1-04-

01 et . seq.)direct that if a person dies intestate and leaves behind a spouse but no

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children, that person’s spouse inherits all of his or her property. If there are

surviving children and a surviving spouse, the spouse still inherits everything.

However, if an intestate person leaves behind no surviving spouse, but does

have surviving children, those children inherit the estate in equal portions.

In other situations, such as where there is no spouse or surviving child, the

decedent’s parents, siblings, or other relatives could inherit. If there are no

identifiable living relatives, the state of North Dakota becomes the legal heir.

WILL VALIDITY

Anyone can write a document and call it a will, but in order for a court to accept

that document as a legally valid will, the document must meet very specific

criteria. Like intestacy laws, these criteria differ slightly from state to state,

though there are commonalities.

First, a will has to be made in

writing. Those making wills,

called testators, can write them

on their own, or have someone

else write them on their behalf.

Second, testators must sign

their wills, and do so in the

presence of two witnesses.

Those witnesses must then also sign. In many states, such as North Dakota, the

witnesses must be “disinterested.” This means that they can’t inherit from the

will or inherit from the testator.

German Law Group Facts About Wills in North Dakota 4

Third, the testator must be capable of making a will. To be capable you must be

an adult of sound mind. Being of sound mind means that you understand what

you own, know who stands to inherit that property, and are able to make your

own decisions about your inheritance choices.

There are also some states, including North Dakota, that recognize the validity of

holographic wills. A holographic will is one that a testator makes entirely in his or

her own handwriting. Such wills must be signed by the testator but do not need

to be signed by witnesses.

WILL CHOICES

Even though all trusts operate under the same basic principles, there is a

significant difference in the types of benefits they convey. The law gives certain

trusts some rights, while other

trusts have different rights. It’s

therefore very important to be

able to distinguish between the

different types of trust available

to you.

In addition to serving as a

document in which a testator

can state inheritance wishes, wills also allow testators to state their wishes about

other important choices.

German Law Group Facts About Wills in North Dakota 5

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First, a testator can state his or her preference

for a personal representative. The personal

representative, also called an executor, is

responsible for managing the estate during

probate. Probate is the legal process that takes

place after a person dies in which the court

supervises the transfer of the estate property to

the inheritors.

Second, the testator can include a guardianship

nomination. If the testator has young children, he

or she can choose who will become the child’s

guardian after the testator dies.

Also, apart from inheritances, guardians, and

personal representatives, a testator can also use

a will for other purposes. For example, the

testator can direct for the creation of a trust. This

is commonly done when a testator leaves

property to young children or grandchildren and

wants to keep that property in a trust until the

child or grandchild becomes old enough.

LIMITATIONS

However, there are many things a will cannot do.

For example, you cannot use a will as an advance

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medical directive. Advance directives, such as a living will, tell your doctors what

your healthcare and medical treatment choices. Wills are not suitable for this

purpose.

Also, wills are not suitable for deciding how you want to distribute non-probate

property. Property you do not own as an individual, as well as certain types of

individually owned property, pass to new owners after your death without first

having to go through probate. Non-probate property includes, for example,

property you own under the name of a living trust, or property you own as a

joint-owner with someone else. You cannot use your will to distribute non-

probate property.

BEYOND WILLS

Whether they are simple or complicated, wills are vital legal documents that

every capable adult should have. You can always change your mind about the

choices you make in your will, but if you don’t have one, you leave those choices

up to others to make.

A will is also something you need to craft with care. A person without the

appropriate legal background can write a will, but there’s no way to know

whether your will addresses the issues important to you. No two wills are

identical, and to create a document that matches your needs, you need the

assistance of an estate planning lawyer.

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About the Author

Raymond J. German

As an attorney in Minnesota and North Dakota, Raymond

J. German provides a wide range of estate planning and

title services to his clients, with a primary focus on

helping them provide for the security of their loved ones,

reduce estate taxes and avoid or at least minimize the

costs and delays of probate, all with a well-crafted estate

plan. Mr. German defines the mission statement for

Raymond J. German, LTD. Law Firm as "Helping one

family at a time pass on values, beliefs and finances, that

can be shared for generations to come." Mr. German is

well aware of the growing importance of estate planning and dedicates himself

to informing the public of the need for careful attention to their specific

situations. He is a frequent speaker on a variety of estate planning topics,

regularly presenting educational seminars for the public as well as private

groups.

Raymond J. German approaches each challenge with not just solid expertise, but

also remarkable enthusiasm and vigor. By constantly seeking simpler, better, and

more effective ways of doing things, he continues to make a real difference in

the lives of families and on the way estate planning is practiced by attorneys

around the country.

German Law Group, PC www.GermanLawGroup.com

GRAND FORKS 2650 32nd Avenue South, Suite O

Grand Forks, ND 58201 Phone: (701) 738-0060

Toll Free: (800) 774-7576 Fax: (701) 738-0064

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Fertile, MN 56540 Phone: (218) 945-6913

Toll Free: (800) 774-7576 Fax: (218) 945-6914