Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult an attorney for guidance on your specific situation.
Detailed Answer
In North Dakota probate proceedings, a subpoena is a court order that compels the production of documents or testimony. You can use a subpoena to gather estate records—such as bank statements, property deeds, or account ledgers—to ensure a complete inventory and accurate distribution of assets.
1. Legal Authority
Under North Dakota Century Code (NDCC) § 30.1-29-03, the personal representative has the power to compel witnesses to testify and to produce documents relevant to estate administration. The North Dakota Rules of Civil Procedure (Rule 45) govern the form, issuance, service, and objections to subpoenas. See the NDCC chapter here: NDCC Chapter 30.1-29 and the rules here: N.D. R. Civ. P. 45.
2. Petitioning the Court
File a written petition or motion with the probate court handling the estate. In your petition, explain why the records are necessary to complete the estate inventory or resolve a dispute among beneficiaries. Attach a proposed subpoena form that describes the records with reasonable particularity.
3. Issuance and Service
Once the court signs the subpoena, the clerk issues it under seal. Serve the subpoena to the custodian of records according to North Dakota Rule of Civil Procedure 4, which generally requires personal service or delivery by a process server. Include the statutory witness fee and mileage for each person you subpoena.
4. Scope and Limitations
The subpoena must clearly identify the documents sought (e.g., bank account statements for January 1, 2020, through December 31, 2020). You cannot use a subpoena to harass or overburden the custodian. If the custodian objects or seeks to quash the subpoena, file a motion in the same court under Rule 45(d)(3).
5. Reviewing and Using Records
After service, the custodian must produce the records by the date specified. Review the documents promptly and include relevant excerpts in the estate inventory. If disputes arise over authenticity or relevance, you can request a deposition under NDCC § 30.1-29-02 or a court hearing.
6. Incorporating Records into Administration
Use the produced documents to verify asset values, identify heirs, and prepare the final accounting. File copies of key records with the probate court or attach them as exhibits to your inventory and accounting report.
Helpful Hints
- Identify the right custodian. Confirm who holds the estate records (bank, title company, etc.).
- Be specific. Describe documents clearly to avoid objections for being overbroad.
- Check filing deadlines. File your subpoena motion early to allow time for service and production.
- Include proper fees. Attach the statutory witness fee and mileage with the subpoena.
- Prepare for objections. Understand Rule 45’s grounds for quashing or modifying a subpoena.
- Maintain organization. Keep copies of all subpoenas, service papers, and produced documents.
- Consult counsel if needed. An attorney can help navigate complex objections or privileged materials.