Quick overview

If a decedent’s will is outdated, you still can often open probate and get authority to manage and, if necessary, sell estate real property. The key steps are: determine what property is probate property, open probate and get appointed as the personal representative (also called executor or administrator), confirm whether the will or statute gives you power to sell, and if not, ask the court for an order authorizing the sale. This article explains those steps under North Dakota law, what issues an outdated will can create, and practical next steps.

Detailed answer — step by step under North Dakota law

1. Decide whether the will is valid and which assets are in probate

Start by locating the most recent will and any codicils. A later valid will supersedes an earlier one. If you only have an older will, the court will review whether a later will or codicil exists. The court will also determine which assets are “probate assets.” Property passes outside probate if it is jointly owned with right of survivorship, held in trust, or has a named beneficiary or transfer-on-death designation. Only assets that remain solely in the decedent’s name typically become part of the probate estate and require administration.

For information about probate generally in North Dakota, see the North Dakota Courts probate self-help resources: https://www.ndcourts.gov/self-help/estate/probate. For the statutory framework governing probate matters, see North Dakota Century Code, Title 30 (Probate): https://www.legis.nd.gov/cencode/title-30.

2. Open probate and obtain letters appointing a personal representative

To manage estate property you normally must be appointed by the court. File a petition for probate of the will (or for administration if there is no valid will) in the district court of the county where the decedent lived. The court gives notice to interested persons. If the court appoints you, it issues letters testamentary (if there’s a will) or letters of administration (if there is not). Those letters are the primary legal document proving your authority to act on behalf of the estate.

3. Check the will and statute for sales authority

Once appointed, read the will carefully. Many wills include a clause that authorizes the personal representative to sell estate property without further court approval. If the will grants clear authority, you can usually sell property in the ordinary course of administration, subject to any procedural requirements (for example, notice to heirs or appraisal). If the will does not give express authority, North Dakota courts commonly allow the personal representative to sell estate property when necessary to pay debts, preserve assets, or facilitate administration — but you will generally need a court order authorizing the sale.

4. If the will is outdated and heirs contest or a pretermitted heir may exist

An “outdated” will raises common issues: the decedent married, divorced, or had children after the will, or the decedent later acquired or disposed of property. North Dakota law addresses the rights of pretermitted spouses and children and how later life changes affect prior wills. Interested persons can contest a will’s validity (for example, on grounds of lack of capacity or undue influence) or argue that statutory protections apply. Will contests and claims by omitted heirs can delay sales and typically require legal representation and court hearings.

5. Petition the court for authority to sell (if needed)

If your letters do not clearly grant sale authority or if an heir objects, file a petition with the probate court asking for an order to sell the property. In that petition you should:

• Explain why the sale is needed (pay debts, taxes, preserve value, distribute proceeds, etc.).
• Describe the property and any encumbrances (mortgage, liens).
• Provide proposed terms or request permission to sell on reasonable terms and to execute closing documents.
• Request that the court approve sale proceeds distribution or reserve funds pending final accounting.

The court will set a hearing and require notice to interested parties (heirs, beneficiaries, and creditors). If the court grants the order, it will typically authorize the personal representative to sign the deed and handle closing; the court’s order protects the purchaser and clears title at closing.

6. Handling liens, mortgages, and clear title

Even with court authority, you must address mortgages, taxes, and liens before or at closing. Mortgages follow the property and typically must be paid from estate funds or carried by the buyer. Record an affidavit of appointment and a copy of the court order or letters at closing to show your authority to sell.

7. Dealing with disputes and required bonds

Heirs or creditors can object to a sale or seek to contest the will. Such disputes may require the court to delay or refine the sale terms. In some cases the court may require the personal representative to post a bond to protect the estate’s beneficiaries. Consult local rules and the court clerk for bond requirements and hearing procedure.

8. Final accounting and closing the estate

After you sell and pay debts and costs, the personal representative prepares an accounting and proposes distributions to beneficiaries. Seek the court’s approval of the accounting and a final discharge. Only after final distribution and court discharge can you close the estate formally.

Practical checklist and timeline

1. Locate the most recent will and any codicils; identify heirs and potential claimants.
2. Confirm which assets are probate property (title, beneficiary designations, joint ownership).
3. File a petition for probate/administration in the county where the decedent lived and request appointment.
4. Obtain letters testamentary or letters of administration from the court.
5. Review the will for express sale authority. If absent or contested, prepare a petition for court authority to sell.
6. Provide notice to interested parties; attend the hearing for sale authority if the court requires one.
7. Address mortgages and liens; obtain title information and any required payoffs or releases.
8. Complete the sale with buyer; record deed and provide accounting to the court for approval.
9. Distribute proceeds per the will or statute and obtain final discharge to close probate.

Helpful hints

• Get an estate attorney early. Probate and sale authority issues can be technical and contested. An attorney can draft petition language, prepare notices, and reduce delays.
• Preserve documents: death certificate, will(s), deeds, mortgage statements, tax records, insurance policies, account statements, and lists of potential beneficiaries.
• Confirm title before marketing the property. Buyers want clear title and a court order or letters that prove authority to sell.
• Communicate with heirs and beneficiaries. Transparent communication reduces surprises and the chance of an objection that can halt a sale.
• If immediate sale is needed to preserve value (e.g., prevent property deterioration), explain urgency in the petition and provide evidence to the court (estimates, inspections, market analysis).
• Be mindful of taxes and creditors. Selling property often funds creditor claims and final estate taxes; keep records of all payoffs.
• Use the court’s procedures. A court-authorized sale gives buyers and title companies confidence and results in a cleaner closing.