Probate in Common Form — North Dakota

Short answer: In North Dakota, “probate in common form” is the routine procedure by which a personal representative (often called an executor) files a decedent’s original will and a petition with the probate court to open an estate and obtain authority to gather assets and distribute them according to the will. It is a less formal, faster process than a full formal (solemn) probate hearing, but the will’s validity can still be challenged during the statutory contest period.

Detailed answer — what probate in common form means under North Dakota law

Probate administers a decedent’s property after death. North Dakota organizes probate procedures in the North Dakota Century Code under the probate title (Title 30.1). Probate in common form is the standard, simplified route most estates follow when there is an original will and no immediate dispute alleging the will is invalid.

Key characteristics of probate in common form:

• Document filing: The person named as executor files the original will (or a certified copy, if the original is unavailable for stated reasons) and a petition with the county district court for the county where the decedent lived. The petition asks the court to admit the will to probate and to appoint the personal representative.
• Notice and routine processing: The court typically requires notice to beneficiaries and heirs so they have a chance to contest. The court reviews submitted documents and generally issues letters testamentary (or letters of appointment) that authorize the personal representative to act.
• Lower evidentiary threshold (initially): Common-form probate does not require a full, contested hearing with the same pre-hearing proof used in solemn or formal probate. The will is admitted based on standard filings and certifications unless someone timely files a contest or caveat.
• Opportunity to contest: Probate in common form remains subject to challenge. If an interested person timely contests the will’s validity (for example, by asserting fraud, duress, lack of capacity, or improper execution), the matter may proceed to a formal hearing where more extensive evidence is required.
• Potential finality over time: If no valid contest is filed during the statutory contest period, the probate in common form produces final probate rights for the personal representative and beneficiaries. (See North Dakota probate law for exact contest procedures and timing.)

How it differs from formal/solemn probate

Formal or solemn probate involves a formal hearing where proof (testimony, witnesses, or other evidence) is presented up front to establish the will’s validity. Courts use the formal process when the will is contested immediately or there are irregularities (e.g., missing signatures, competing wills, or allegations of undue influence). Common-form probate starts more quickly and with fewer upfront evidentiary requirements, but it does not eliminate the right of interested parties to contest the will later.

Relevant North Dakota statutes and resources

North Dakota’s probate and fiduciary statutes are found in Title 30.1 of the North Dakota Century Code. For statutory language and chapter organization, review the North Dakota Century Code, Title 30.1 (Probate and Fiduciary Administration): https://www.legis.nd.gov/cencode/t30-1c00.html. If you need procedural forms or local filing rules, check the county district court clerk’s office or the North Dakota judicial websites for probate filing instructions and local practice.

Typical step-by-step common-form probate process (practical)

1. Locate the original will and any codicils.
2. Identify the person named as executor (personal representative) in the will.
3. Prepare a petition to probate the will in the district court for the decedent’s county of residence. Include a proposed order and any required affidavits (for example, an affidavit identifying heirs or attesting to the will’s possession).
4. File the petition and original will with the clerk of district court and pay filing fees (fee amounts vary by county).
5. Serve or mail notice to heirs and beneficiaries as required by statute and local rule so they can decide whether to contest.
6. If no valid contest is filed within the applicable time, the court will issue letters testamentary or letters of administration with the will annexed, allowing the representative to collect assets, pay debts, and distribute property under the will.

When to consider using common-form probate

Common-form probate is appropriate when:

• The decedent left a clear original will naming a personal representative.
• There is no known dispute about the will’s execution, capacity, or undue influence.
• The estate size and asset types make routine administration appropriate.

If a dispute is likely, or if there are competing wills, missing signatures, or complex creditor/liability issues, discuss whether a formal proceeding or additional protection (such as requiring bond) is advisable.

Hypothetical example

Jane Doe dies a resident of Grand Forks County leaving a typed will signed by two witnesses that names her friend as executor. The friend files Jane’s original will and a petition for probate in common form in the county district court, mails the required notice to the named beneficiaries and next of kin, and receives letters testamentary after the statutory notice period expires with no contest. The friend then gathers assets, pays debts, and distributes to beneficiaries per the will.

How to contest a common-form probate (brief overview)

An interested person (heir or beneficiary) who believes the will is invalid can file a caveat or a will contest in accordance with North Dakota procedures and deadlines. Common grounds include lack of testamentary capacity, undue influence, improper execution, or fraud. If a contest is filed, the matter advances to a formal hearing with evidence and witness testimony, and the court will decide whether the will should be admitted.

Helpful Hints

• Keep the original will safe and provide a copy to the person likely to file probate; courts generally want the original or a certified copy.
• Contact the clerk of the district court in the county where the decedent lived to get local filing requirements and fee schedules.
• Mail or serve required notices promptly and keep proof of service—proper notice is essential to protect the probate process from later challenges based on lack of notice.
• If you are named as personal representative, inventory assets and secure property quickly to avoid loss or disputes.
• If you suspect the will may be contested or there are complicated assets (business interests, out-of-state property), consider speaking with an attorney experienced in North Dakota probate law.
• Document conversations and transactions during administration to create a clear record in case beneficiaries later ask for accounting or challenge actions.

Disclaimer: This article explains general principles of probate in North Dakota and is for educational purposes only. It is not legal advice. Laws change, and the facts of any individual case matter. Consult a licensed North Dakota attorney or the local district court clerk for guidance specific to your situation.