Disclaimer: This information is provided for educational purposes only. It does not constitute legal advice.
Detailed Answer
Before opening probate in North Dakota, you must locate the decedent’s original will and any codicils and confirm their authenticity. Under North Dakota law, a probate court requires the original document to prove its validity. Here’s how to find and verify these documents:
1. Searching for the Original Will and Codicils
- Check Personal Records: Examine the decedent’s safe, filing cabinets, home office, or personal papers for a signed will or codicil.
- Contact the Drafting Attorney: Many attorneys keep a client’s original will in their office. Reach out to any attorney who prepared estate planning documents for the decedent.
- Search with Financial Institutions: Banks often store original wills or codesigns in safe deposit boxes. Request access to the decedent’s box if you are a co-owner or court-authorized representative.
- Check with the County Clerk: North Dakota laws allow voluntary deposit of wills with the clerk for safekeeping. Inquire at the clerk’s office of the county where the decedent lived (NDCC § 30.1-17-07).
2. Verifying Authenticity
- Self-Proved Will Affidavit: If the will includes a notarized self-proving affidavit signed by the testator and two witnesses, the court accepts it without live testimony. See NDCC § 30.1-21-03.
- Witness Testimony: For wills without a self-proving affidavit, contact at least two attesting witnesses to testify under oath that they saw the testator sign the will and that the testator appeared of sound mind.
- Signature Comparison: Compare the signature on the will with known samples such as checks or other signed documents.
3. Handling Lost or Destroyed Wills
If the original will or codicil cannot be located, you may still probate a lost will under North Dakota law by proving its contents and the reason it is not presented:
- Written Proof of Contents: Provide a copy of the will or detailed testimony about its provisions.
- Explain Non-Production: Present evidence showing the cause of the will’s loss or destruction (e.g., a fire or misplacement).
- Witness Corroboration: Secure testimony from at least two credible, disinterested witnesses who can attest to the will’s execution and contents (NDCC § 30.1-21-06).
Helpful Hints
- Begin your search early to avoid delays in the probate process.
- Keep records of all contacts with attorneys, banks, and witnesses.
- Secure and duplicate any copies you find, but always submit the original to the court.
- Consider hiring a probate attorney to navigate complex verification steps.
- Notify potential witnesses promptly, as their memories may fade over time.