Probate is the legal process by which assets are transferred out of a deceased
person’s estate to his or her heirs and devisees. Probate is required in any state
where real property is owned solely or as a tenant in common by the decedent. In
addition, in North Dakota, probate is required if the decedent died owning $50,000
or more in other probate assets in the decedent’s name.
As part of probate, a court appoints a personal representative or administrator to
gather the decedent’s probate assets and transfer those assets to the person or
persons entitled to receive them.
It is not unusual for clients to ask for their estate plans to be formulated with the
primary goal of avoiding probate. Clients may have heard horror stories about how expensive probate can be. And
in some states, where attorneys are allowed to charge legal fees based on the
percentage value of assets in the estate, the cost of probate can be prohibitive.
North Dakota is not one of the states that allows attorney fees for probate
proceedings to be based on the value of the estate; therefore, in North Dakota most
attorneys charge their regular hourly rate. The effect is that although a complex
probate can be expensive, a simple probate normally is not.
In addition, there are some reasons why a probate proceeding may be a good idea.
A probate proceeding can shorten the period of time in which creditors can submit
a claim against the assets in the estate. As part of probate proceedings, Notice to
Creditors is often published in the newspaper where the decedent lived. If Notice
to Creditors is published as part of a probate process, creditors must submit their
claims no later than 90 days after the date Notice to Creditors is published. If no
Notice to Creditors is published, creditors have three years after the decedent’s
death to submit claims. If assets have already been distributed, those assets may
need to be clawed back to pay any valid claims submitted during the three-year
period.