Small Estate Probate FAQs

Most people leave behind an estate when they die that consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate.

If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in that Will is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to be the Administrator and oversee the probate of the estate and the state intestate succession laws dictate how estate assets are distributed.

Although the probate process is unique for every estate, common steps in the process include:

• Identifying, locating, and valuing all estate assets.
• Categorizing assets as probate or non-probate assets.
• Opening the probate of the estate.
• Notifying creditors of the estate that probate is underway.
• Reviewing and approving or denying creditor claims.
• Prioritizing and paying approved claims.
• Defending any challenges to the Will or litigating any claims.
• Calculating any paying federal (and state, if applicable) gift and estate taxes.
• Transferring any remaining assets to the named beneficiaries and/or legal heirs of the estate.

A complex estate can take months, even years, to get through the formal probate process. Creditors have a minimum of three months – and sometimes longer – to file a claim against an estate in North Dakota. Those claims then have to be reviewed and paid or denied. For this reason, even a relatively small estate can easily take six months to a year (or longer) to probate. Along with the time it takes to get through formal probate, it can also be very expensive because everyone involved in the probate of the estate (Executor, lawyers, appraisers, accountants) are entitled to a fee. This can dramatically diminish the value of the estate that is ultimately passed down to loved ones.

Assets are classified as probate or non-probate at the beginning of the probate process. Assets that are considered non-probate assets bypass probate altogether and can be distributed directly to the named beneficiaries. Common examples of non-probate assets include:

• Assets held in a trust
• Proceeds of a life insurance policy
• Certain types of jointly help property
• Assets held in an account with a “payable on death (POD)” or a “transfer on death (TOD)” designation
• Certain retirement, pension accounts

North Dakota allows estate assets to be distributed using a small estate affidavit and/or through a summary administration procedure. To use a small estate affidavit the value of the entire estate subject to distribution or succession less liens and encumbrance cannot exceed $50,000. Summary administration applies when:

“…it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed the homestead as defined in section 47-18-01, plus exempt property pursuant to section 30.1-07-01, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in section 30.1-23-04.”