Understanding Who Controls and Inherits When There Is No Will in North Dakota

Short answer: If someone dies in North Dakota without a will (intestate), their children are primary heirs and generally inherit equally. If a surviving spouse exists, the spouse’s share depends on whether the children are also the spouse’s children. If a child has died before the decedent leaving children (grandchildren), those descendants usually take that deceased child’s share by representation. If multiple children want to serve as the estate’s personal representative (administrator), the court prefers the surviving spouse first, then adult children and other heirs in a statutorily ordered priority; when several persons have the same priority the court typically appoints the person who is willing and able or chosen by a majority in interest.

Detailed answer — How succession among children works in North Dakota

This section explains two closely related questions people ask when there is no will:

1. How will the decedent’s estate be divided among children (who inherits)?
2. Who can be appointed to administer the estate (who becomes the personal representative/administrator)?

1. Who inherits when the decedent is survived by children?

When a person dies intestate in North Dakota, their property passes according to state intestacy rules rather than by a will. The basic rules are:

• If the decedent is survived by children and no spouse, generally the children inherit the entire estate in equal shares.
• If the decedent is survived by a spouse and children, the spouse’s share depends on whether the children are also the spouse’s children. In many situations the spouse gets a statutory share and the children split the remainder.
• If a child of the decedent died before the decedent but left children (the decedent’s grandchildren), those grandchildren usually take their parent’s share by representation (commonly called “by representation” or “per stirpes” distribution). That means the deceased child’s branch takes the share the child would have had, divided among that child’s descendants.
• Adopted children generally have the same inheritance rights as biological children. Stepchildren who were not legally adopted usually do not inherit as children under intestacy unless the law or specific circumstances (like dependency or adoption) create rights.
• Children whose parentage is established (including children born out of wedlock where paternity has been legally established) inherit like other children.

These rules are set out in North Dakota’s probate and intestacy law. For the statutory text and precise definitions, see the North Dakota Century Code and the probate provisions on intestate succession. The North Dakota Legislative website provides the full code: https://www.legis.nd.gov/cencode.

2. Who may be appointed to administer the estate when there is no will?

When there is no executor named by a will, the court appoints a personal representative (often called an administrator). North Dakota’s probate system gives priority to certain people in a defined order. Typical priority order used by many probate courts (and followed in North Dakota practice) is:

1. Surviving spouse (if any).
2. Adult children or a majority of the children acting together (an adult child generally means someone 18 or older).
3. Parents of the decedent if no spouse or children are available.
4. Siblings of the decedent.
5. More remote next of kin (grandparents, aunts/uncles, etc.).
6. Creditors or a public administrator, if no qualified heirs are available or willing to serve.

When several people share the same priority (for example, multiple adult children), the probate court usually prefers to appoint the person who is willing and able to serve and who has the largest interest in the estate or who is selected by a majority in interest of the heirs. If heirs cannot agree, the court will decide and may appoint a neutral person or require a bond and court supervision.

Practical effects of these rules

• If several children are alive and agree on who should be administrator, the court will often appoint that child.
• If a child wants to contest who should administer, they can file an application with the probate court and the court will decide under the statutory priority and what is in the estate’s best interest.
• Appointment as administrator does not change an heir’s share of inheritance; the administrator’s job is to collect assets, pay debts and taxes, and distribute what remains according to law.

Common hypothetical examples

Example A — Decedent survived only by three adult children and no spouse: The three children inherit equally (one-third each). Any of the children can ask the court to be appointed administrator; if they agree, the court commonly appoints the agreed candidate.

Example B — Decedent survived by spouse and two children, both children are also children of the spouse: The spouse receives the statutory spouse’s share; the children receive the remainder (split equally). The spouse usually has priority to serve as administrator. If the spouse does not serve, one of the children may be appointed.

Example C — One child predeceased and left two children (the decedent’s grandchildren): Those grandchildren take their parent’s share by representation and split it between them.

How to proceed if you’re a child or heir

Steps to consider:

1. Determine whether there is a will. If not, prepare to open a probate case in the county where the decedent lived.
2. Gather vital documents (death certificate, birth/adoption records, marriage records, financial account statements, deeds, insurance policies).
3. Talk with other heirs about who will act as administrator. Courts favor cooperation.
4. If heirs cannot agree, file a petition for appointment with the county probate court and the court will decide who is appointed according to statute and the best interests of the estate.
5. Consider consulting an attorney who practices probate/intestate matters in North Dakota to help with statutory requirements, creditor notices, bond requirements, and distributions.

Helpful hints

• Check whether the family can agree on an administrator. Agreement simplifies and speeds the process.
• Understand representation rules: grandchildren and later descendants often step into a predeceased parent’s share.
• Adoption matters: legally adopted children usually inherit as children; stepchildren do not, unless adopted.
• Establishing paternity: if paternity of an adult child is not established, that person may need a court order to inherit.
• Small estate procedures: North Dakota has simplified procedures for small estates. If the estate’s value is low, a quicker affidavit or summary process may be available—ask the court clerk or an attorney.
• Be aware of creditor claims and taxes: before distributing assets, the administrator must pay valid debts and taxes; distribute only after the estate is settled or after following statutory timelines for creditor claims.
• Keep good records: an administrator must account to the court and the heirs for money received and distributed.
• If heirs suspect improper conduct by an administrator, they can ask the court to remove and replace that administrator or to surcharge (hold financially responsible) for losses caused by misconduct.

Where to find the law and get help

North Dakota’s statutes governing probate and intestate succession are published by the North Dakota Legislative Assembly. For full statutory language and related probate provisions, use the North Dakota Century Code available at the Legislative website: https://www.legis.nd.gov/cencode. You can search for probate, intestacy, and appointment-of-personal-representative rules on that site.

For procedural forms and county-specific probate information, contact the clerk of the district court in the county where the decedent lived or visit the North Dakota court website for probate information.

Disclaimer

This article explains general principles of North Dakota intestate succession and estate administration. It is educational only and not legal advice. Laws change and every case has unique facts. For advice about a specific situation or to begin probate, consult a licensed North Dakota attorney experienced in probate and estate law.