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Get a better understanding of what wills are, what they do, and how they fit into an estate plan.
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Get a Better Understanding of What Wills Are, What They Do,
and How They Fit Into an Estate Plan
FACTS ABOUT WILLS
IN NORTH DAKOTA
RAYMOND J GERMAN NORTH DAKOTA ESTATE PLANNING ATTORNEY
German Law Group Facts About Wills in North Dakota 2
Most people know what a will is, but fewer know what you can do with a will or
what’s involved in creating these important legal documents. Wills form an
essential piece of every estate plan. Even though your plan might include other
elements that play a larger role, a will is still a necessity. To get a better
understanding of what wills are, what they do, and how they fit into an estate
plan, we’ve assembled this list of facts.
WILLS AND INTESTACY
The primary purpose of a last will and testament—the more formal name for a
will—is to state your preferences about how your property will be distributed
after you die. When you die and leave behind any kind of property—called an
estate—someone else will have to become the new owner. The law allows you to
choose how to distribute your estate by creating a will and stating your
inheritance choices. Though there are other methods available for accomplishing
this goal, you must use a will to distribute any property you own as an individual.
If you don’t make a will, the individual property you leave behind will still have to
be distributed to new owners after you’re gone. But who inherits that property if
you haven’t made your wishes known?
Dying without a will is known as dying intestate. When this happens, state laws
decide who the new owner of the decedent’s property becomes. Though these
intestacy laws differ between states, they are generally similar, and give property
to the decedent’s closest surviving relatives.
For example, North Dakota’s intestacy laws (North Dakota Century Code section 30.1-04-
01 et . seq.)direct that if a person dies intestate and leaves behind a spouse but no
German Law Group Facts About Wills in North Dakota 3
children, that person’s spouse inherits all of his or her property. If there are
surviving children and a surviving spouse, the spouse still inherits everything.
However, if an intestate person leaves behind no surviving spouse, but does
have surviving children, those children inherit the estate in equal portions.
In other situations, such as where there is no spouse or surviving child, the
decedent’s parents, siblings, or other relatives could inherit. If there are no
identifiable living relatives, the state of North Dakota becomes the legal heir.
WILL VALIDITY
Anyone can write a document and call it a will, but in order for a court to accept
that document as a legally valid will, the document must meet very specific
criteria. Like intestacy laws, these criteria differ slightly from state to state,
though there are commonalities.
First, a will has to be made in
writing. Those making wills,
called testators, can write them
on their own, or have someone
else write them on their behalf.
Second, testators must sign
their wills, and do so in the
presence of two witnesses.
Those witnesses must then also sign. In many states, such as North Dakota, the
witnesses must be “disinterested.” This means that they can’t inherit from the
will or inherit from the testator.
German Law Group Facts About Wills in North Dakota 4
Third, the testator must be capable of making a will. To be capable you must be
an adult of sound mind. Being of sound mind means that you understand what
you own, know who stands to inherit that property, and are able to make your
own decisions about your inheritance choices.
There are also some states, including North Dakota, that recognize the validity of
holographic wills. A holographic will is one that a testator makes entirely in his or
her own handwriting. Such wills must be signed by the testator but do not need
to be signed by witnesses.
WILL CHOICES
Even though all trusts operate under the same basic principles, there is a
significant difference in the types of benefits they convey. The law gives certain
trusts some rights, while other
trusts have different rights. It’s
therefore very important to be
able to distinguish between the
different types of trust available
to you.
In addition to serving as a
document in which a testator
can state inheritance wishes, wills also allow testators to state their wishes about
other important choices.
German Law Group Facts About Wills in North Dakota 5
FREE LIVING TRUSTS REPORT
LIVING TRUSTS
CALCULATING THE BENEFITS
A Living Trust is a very versatile estate planning tool - one that can
be customized to suit all your needs.
A Living Trust Can Provide Peace of Mind
. . . There Are Many Reasons Why
And Our Living Trust Report is FREE, With No Obligation
CLICK TO DOWNLOAD YOUR FREE
REPORT TODAY!
First, a testator can state his or her preference
for a personal representative. The personal
representative, also called an executor, is
responsible for managing the estate during
probate. Probate is the legal process that takes
place after a person dies in which the court
supervises the transfer of the estate property to
the inheritors.
Second, the testator can include a guardianship
nomination. If the testator has young children, he
or she can choose who will become the child’s
guardian after the testator dies.
Also, apart from inheritances, guardians, and
personal representatives, a testator can also use
a will for other purposes. For example, the
testator can direct for the creation of a trust. This
is commonly done when a testator leaves
property to young children or grandchildren and
wants to keep that property in a trust until the
child or grandchild becomes old enough.
LIMITATIONS
However, there are many things a will cannot do.
For example, you cannot use a will as an advance
German Law Group Facts About Wills in North Dakota 6
medical directive. Advance directives, such as a living will, tell your doctors what
your healthcare and medical treatment choices. Wills are not suitable for this
purpose.
Also, wills are not suitable for deciding how you want to distribute non-probate
property. Property you do not own as an individual, as well as certain types of
individually owned property, pass to new owners after your death without first
having to go through probate. Non-probate property includes, for example,
property you own under the name of a living trust, or property you own as a
joint-owner with someone else. You cannot use your will to distribute non-
probate property.
BEYOND WILLS
Whether they are simple or complicated, wills are vital legal documents that
every capable adult should have. You can always change your mind about the
choices you make in your will, but if you don’t have one, you leave those choices
up to others to make.
A will is also something you need to craft with care. A person without the
appropriate legal background can write a will, but there’s no way to know
whether your will addresses the issues important to you. No two wills are
identical, and to create a document that matches your needs, you need the
assistance of an estate planning lawyer.
German Law Group Facts About Wills in North Dakota 7
About the Author
Raymond J. German
As an attorney in Minnesota and North Dakota, Raymond
J. German provides a wide range of estate planning and
title services to his clients, with a primary focus on
helping them provide for the security of their loved ones,
reduce estate taxes and avoid or at least minimize the
costs and delays of probate, all with a well-crafted estate
plan. Mr. German defines the mission statement for
Raymond J. German, LTD. Law Firm as "Helping one
family at a time pass on values, beliefs and finances, that
can be shared for generations to come." Mr. German is
well aware of the growing importance of estate planning and dedicates himself
to informing the public of the need for careful attention to their specific
situations. He is a frequent speaker on a variety of estate planning topics,
regularly presenting educational seminars for the public as well as private
groups.
Raymond J. German approaches each challenge with not just solid expertise, but
also remarkable enthusiasm and vigor. By constantly seeking simpler, better, and
more effective ways of doing things, he continues to make a real difference in
the lives of families and on the way estate planning is practiced by attorneys
around the country.
German Law Group, PC www.GermanLawGroup.com
GRAND FORKS 2650 32nd Avenue South, Suite O
Grand Forks, ND 58201 Phone: (701) 738-0060
Toll Free: (800) 774-7576 Fax: (701) 738-0064
FERTILE 105 North Mill Street, P.O. Box 127
Fertile, MN 56540 Phone: (218) 945-6913
Toll Free: (800) 774-7576 Fax: (218) 945-6914