By: Kathryn Nekola
Probate is necessary in North Dakota and Minnesota when someone dies owning property, without a joint owner or beneficiary, and the estate is too large to qualify as a small estate or includes real estate. Many families can skip it entirely, but the rules differ on each side of the Red River.
What Does Probate Do?
Probate is the court process in which an appointed personal representative administers a deceased person’s estate, including collecting assets, paying debts, and transferring what is left to heirs or beneficiaries.
The probate process only reaches “probate assets,” meaning property titled in the deceased person’s name alone. Assets with a named beneficiary, joint tenancy property, property in a trust, and real property subject to a transfer on death deed pass outside of probate.
When Is Probate Necessary in North Dakota?
In North Dakota, probate is necessary when probate assets exceed $100,000 after liens and debts, or when the deceased person had an ownership interest in real estate that was not held in trust or subject to a transfer on death deed.
When Is Probate Necessary in Minnesota?
In Minnesota, probate is necessary when the decedent’s probate estate exceeds $75,000 after liens and debts, or includes an ownership interest in real estate that hasn’t been set up to skip probate.
Minnesota’s limit is now lower than North Dakota’s. That means a $90,000 estate made up of bank accounts without named beneficiaries would avoid probate in Fargo but require probate in Moorhead.
How Can You Collect Property When Probate Isn’t Necessary?
When probate isn’t necessary, heirs and beneficiaries can usually collect property directly. The right tool depends on how each asset was titled.
Affidavit for Collection of Personal Property
Both North Dakota (N.D.C.C. § 30.1-23-01) and Minnesota (M.S.A. § 524.3-1201) allow for the collection of personal property through the use of an affidavit for collection of personal property.
An affidavit for collection of personal property is a sworn statement that the estate qualifies as a small estate and the signer is entitled to the property. This affidavit may be presented to a bank or other holder of the decedent’s property starting 30 days after the decedent’s death. No court filing is required. In fact, if a probate has been initiated, the affidavit cannot be used.
In both North Dakota and Minnesota, the affidavit for collection of personal property transfers only personal property, such as bank accounts, vehicles, and stock. Real estate, including mineral interests, requires probate unless it passes by joint tenancy, a transfer on death deed, or a trust. If real estate, including mineral interests, is part of the probate estate, the affidavit cannot be used.
Beneficiary Designations and POD/TOD Accounts
For life insurance, retirement accounts, and payable-on-death or transfer-on-death accounts, the named beneficiary typically submits a claim form and a certified death certificate.
Transfer on Death Deeds
A transfer on death deed lets an owner name who receives real estate upon the owner’s death without giving up control during life. North Dakota authorizes these deeds under N.D.C.C. ch. 30.1-32.1, and Minnesota under Minn. Stat. § 507.071. After the death of the owner, the beneficiary records a death certificate and affidavit of survivorship with the county recorder in order to document the completed transfer.
Joint Tenancy
Joint tenancy lets two or more people own real estate together so that when one owner dies, the surviving owner(s) automatically take the decedent’s ownership interest without probate. Unlike a transfer on death deed, joint tenancy gives each co-owner a present ownership interest during life.
North Dakota recognizes joint tenancy under N.D.C.C. § 47-02-06, and Minnesota under Minn. Stat. § 500.19. In both states, the deed must expressly state that the owners hold title as joint tenants. After the death of a joint tenant, the survivor records a death certificate and affidavit of survivorship with the county recorder to document that the deceased owner’s interest has ended.
Talk to a Probate Attorney About Your Options
Whether probate is necessary in North Dakota or Minnesota depends on how each asset was titled, what it is worth, and where it sits. Our probate team helps individuals in both states determine whether probate is necessary and, if it is, navigate the process.
If you have any questions regarding probate administration, please contact us!
This article is for informational purposes only and is subject to our disclaimer.
