Detailed Answer
In North Dakota, real property may transfer automatically at death if certain conditions apply. Real estate held in joint tenancy with right of survivorship or held as tenants by the entirety, and property subject to a valid Transfer on Death Deed, passes by operation of law outside probate.
Automatic Transfer at Death
- Joint Tenancy: When two or more people own real estate as joint tenants, the surviving co-owner automatically receives title. See NDCC §47-06-07: Joint Tenancy.
- Transfer on Death Deed: The decedent may execute a deed stating who will receive the property at death. This takes effect outside probate. See NDCC Chapter 47-14: Transfer on Death Deed.
Why Probate Matters
- Assets Not in Automatic Transfer: Any property held in the decedent’s name alone without survivorship features must go through probate.
- Debts and Taxes: Probate appoints a personal representative to pay creditors and file the final income tax return. See NDCC §30.1-03-01: Admission of Wills; Probate Proceedings.
- Clear Title: Even jointly held property may need probate clearance to clear liens or to resolve disputes.
- Will Contests: Probate provides a forum to contest the validity of the will and resolve disputes among heirs.
Although some property passes outside probate, the will must still be probated to ensure all assets are collected, debts are paid, and distribution follows the decedent’s wishes under North Dakota law.
Disclaimer
This article is for informational purposes and not legal advice. Consult a qualified attorney for advice specific to your situation.
Helpful Hints
- Review property records to confirm joint tenancy or beneficiary deeds before death.
- Locate and review the will promptly after death to identify non-probate assets.
- Consider small estate affidavit procedures for estates under North Dakota’s small estate threshold.
- Contact the county recorder’s office to file any death-time property transfer documents.
- Keep detailed records of debts paid and assets distributed during probate.