Making a Will in North Dakota

Steps to Create a Will in North Dakota

Here's a quick checklist for making a will in North Dakota:

1. Decide what property to include in your will.
2. Decide who will inherit your property.
3. Choose an executor to handle your estate.
4. Choose a guardian for your children.
5. Choose someone to manage children's property.
6. Make your will.
7. Sign your will in front of witnesses.
8. Store your will safely.

Why Should I Make a North Dakota Will?

A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:

• leave your property to people or organizations
• name a personal guardian to care for your minor children
• name a trusted person to manage property you leave to minor children, and
• name a personal representative, the person who makes sure that the terms of your will are carried out.

What Happens if I Don't Have a Will?

In North Dakota, if you die without a will, your property will be distributed according to state "intestacy" laws. North Dakota's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, great aunts and uncles, cousins of any degree, and the descendants of a spouse who died before you do. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I Need a Lawyer to Make a Will in North Dakota?

No. You can make your own will in North Dakota, using Nolo's Quicken WillMaker. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.

What Are the Requirements for Making a Will in North Dakota?

To make a will in North Dakota, you must be:

• an adult, and
• of sound mind. N.D. Cent. Code § 30.1-08-01.

You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Type and print your will using a computer, or you can use a typewriter. North Dakota recognizes handwritten wills (N.D. Cent. Code § 30.1-08-02), but they are usually not a good idea.

How Do I Sign My North Dakota Will?

To finalize your will in North Dakota:

• you must sign or acknowledge your will in front of two witnesses, and
• your witnesses must sign your will within a reasonable time from your signing or acknowledgment or acknowledged before a notary public. N.D. Cent. Code § 30.1-08-02.

Although North Dakota allows interested parties who stand to inherit serve as a witness, it's usually best for only disinterested witnesses to sign the will to avoid any argument that the testator was influenced. Cent. Code § 30.1-08-05.

All material provisions and the signature must be in your handwriting to create a valid holographic will. N.D. Cent. Code § 30.1-08-02.

Do I Need to Have My Will Notarized?

No, in North Dakota, you do not need to notarize your will to make it legal. However, if you don't want to have your will witnessed, you can have it notarized instead to make it legal. N.D. Cent. Code § 30.1-08-02.

Additionally, North Dakota allows you to make your will "self-proving," and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.

To make your will self-proving, you and your witnesses must sign an affidavit (sworn statement) in front of a notary public. The witnesses' statement says that they knew you were signing your will and that you appeared to be of sound mind and are signing voluntarily. N.D. Cent. Code § 30.1-08-04.

Should My Will Name a Personal Representative?

Yes. In North Dakota, you can use your will to name a personal representative, who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WIllMaker produces a letter to your personal representative that generally explains what the job requires. If you don't name a personal representative, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

In North Dakota, you may revoke or change your will at any time. You can revoke your will by:

• burning, tearing, canceling, obliterating, or destroying all or part of the will
• ordering someone else to burn, tear, cancel, obliterate, or destroy all or part of the will in front of you, or
• making a new will that says it revokes the old one or that has contradictory terms to the old one.

If you have two wills and it's not clear whether you revoked the old will or not, North Dakota has rules that determine whether your new will revokes the old one or simply adds to it. If you intended to revoke the old will, the old will is revoked. North Dakota law presumes you intended to revoke your old will if the new will disposes of all of your estate. If you didn't dispose of all of your estate in your new will, North Dakota law presumes you only meant to add on to your old will. In this situation, the executor should follow the instructions in both wills. If there's a contradictory term, the executor should follow the instructions of the new will for that particular term. N.D. Cent. Code § 30.1-08-07.

If you and your spouse divorce (or if a court determines that your marriage is not legal), North Dakota law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule does not apply if you happen to remarry your spouse. N.D. Cent. Code § 30.1-10-04. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.

If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).

Can I Make a Digital or Electronic Will?

In a few states, you can make a legal will digitally – that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. It is generally assumed that most states will allow them in the near future.

Where Can I Find North Dakota's Laws About Making Wills?

You can find North Dakota's laws about making wills here: North Dakota Century Code Title 31 Uniform Probate Code Chapter 30.1-08 Wills.