A concern many people have is whether they actually need a Last Will &
Testament (“Will”). In order to answer that question, it is important to understand
how your property would pass if you do not have a Will. If you die without a
Will, any probate assets you have will pass according to the laws of intestacy in the state you
were domiciled in at the time of your death.
If you died without a Will in North Dakota, all of your probate assets would pass to
your surviving spouse, but only if:
1. You died leaving no surviving children, grandchildren, etc. (“descendants”)
and no surviving parent; or
2. All of your surviving descendants are also descendants of your spouse AND
your spouse has no other surviving descendants.
In essence, this provision limits the ability of a surviving spouse who has children
not in common with the deceased spouse to receive the entirety of the deceased
spouse’s estate. If the above conditions are not met, the surviving spouse is
entitled to a reduced share of the probate assets. Consequently, if you want your
spouse to receive all of your probate assets or a percentage that differs from North
Dakota intestacy laws, you would need a Will to ensure that occurs.
If you died without a Will and left no surviving spouse, your probate assets would
be distributed as follows:
1. First to your descendants by right of representation, (by right of
representation means that children receive a deceased parent’s share); but if
you left no surviving descendants;
2. Then to your parents in equal shares, or to the survivor of them, but if you
left no surviving parent;
3. Then to your siblings by right of representation, but if no one is surviving in
4. Then to your grandparents and so on.
If none of the persons entitled to receive under the laws of intestacy exist or are
surviving at your death, your probate assets would pass to the state.
If the laws of intestacy are in line with how you would like your probate assets to
be distributed at your death, you may not need a will. But there may be other
reasons why having a Will is a good idea.