Complex Will with Trust - North Dakota

LAST WILL AND TESTAMENT OF [TESTATOR FULL LEGAL NAME]

NORTH DAKOTA EXECUTION NOTICE

N.D.C.C. § 30.1-08-02 requires a will to be in writing and signed by the Testator, or in the Testator's name by another individual in the Testator's conscious presence and at the Testator's direction. This form uses the statute's two-witness method: each witness must sign within a reasonable time after witnessing the signing or the Testator's acknowledgment of the signature or Will. The self-proving ceremony follows N.D.C.C. § 30.1-08-04.

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Revocation & Family Information

4. Appointment of Fiduciaries
   4.1 Personal Representative
   4.2 Guardian/Conservator
   4.3 Testamentary Trustee

5. Payment of Debts, Expenses & Taxes

6. Specific Devises & Bequests
7. Residuary Clause & Creation of the “[TRUST NAME]”

8. “[TRUST NAME]” – Operative Provisions
   8.1 Trust Purpose
   8.2 Trust Funding
   8.3 Trustee Powers
   8.4 Fiduciary Standards
   8.5 Distributions to Beneficiaries
   8.6 Spendthrift & Creditors’ Rights
   8.7 Termination & Final Distribution

9. Breach & Remedies

10. Risk Allocation
11. Dispute Resolution
12. General Provisions
13. Execution & Attestation

1. DOCUMENT HEADER

1.1 Execution Date. This Last Will and Testament and the testamentary Trust it creates (collectively, the “Instrument”) are executed on [__/__/____].

1.2 Testator. [TESTATOR FULL LEGAL NAME], currently domiciled at [ADDRESS], [COUNTY] County, North Dakota (“Testator”), being an adult of sound mind, declares this Instrument to be the Testator's Last Will.

1.3 Governing Law. This Instrument shall be construed under applicable North Dakota law.

2. DEFINITIONS

For ease of reference, the following capitalized terms have the meanings set forth below and apply throughout this Instrument.

“Administrator” – Any personal representative appointed by the court if no Personal Representative named herein serves.

“Beneficiary” – A person or entity entitled to receive property under Articles 6 or 8.

“Child” or “Children” – [INSERT THE TESTATOR'S INTENDED DEFINITION, INCLUDING ADOPTION, ASSISTED REPRODUCTION, NONMARITAL CHILDREN, AND STEPCHILDREN].

“Descendants” – [INSERT THE TESTATOR'S INTENDED DEFINITION].

“By Representation” – [INSERT THE TESTATOR'S INTENDED METHOD OF DIVISION].

“Fiduciary” – The Personal Representative, Trustee, Guardian, and any successor or co-fiduciary.

“Personal Representative” – The executor/administrator of Testator’s estate.

“Principal” – The corpus of the Trust, including additions and accretions.

“Trust” – The testamentary trust created under Article 8, titled “[TRUST NAME]”.

“Trustee” – The individual(s) or institution(s) serving as trustee of the Trust.

3. REVOCATION & FAMILY INFORMATION

3.1 Revocation. I revoke all prior wills and codicils under N.D.C.C. § 30.1-08-07. I do not intend this clause by itself to change beneficiary designations, survivorship ownership, transfer-on-death arrangements, or other nonprobate dispositions.

3.2 Marital Status. Testator is [MARRIED / SINGLE / WIDOWED / DIVORCED]. Testator’s spouse is [SPOUSE NAME].

3.3 Children. Testator has the following living children:
• [CHILD 1 FULL NAME, DOB]
• [CHILD 2 FULL NAME, DOB]
• […]

3.4 Family Review. [INSERT EXPRESS DIRECTIONS FOR AFTER-BORN, ADOPTED, OR OMITTED FAMILY MEMBERS AFTER NORTH DAKOTA COUNSEL REVIEW].

4. APPOINTMENT OF FIDUCIARIES

4.1 Personal Representative

(a) Primary Appointment. Testator appoints [PRIMARY PR NAME] as Personal Representative.
(b) Successors. If the primary cannot serve, [SUCCESSOR PR NAME] shall serve.
(c) Bond. I direct that no bond be required of any Personal Representative, subject to N.D.C.C. § 30.1-17-03 and any court order authorized by law.

4.2 Guardian / Conservator of Minor Children

(a) Guardian. Testator nominates [GUARDIAN NAME] as guardian of minor Children.
(b) Successor Guardian. [SUCCESSOR GUARDIAN] is nominated as successor.
(c) Acceptance and Court Approval. Under N.D.C.C. § 30.1-27-02, a testamentary appointment becomes effective upon filing the guardian's acceptance in the court in which this Will is probated and remains effective upon court approval, subject to that section's conditions. The guardian-ad-litem review and approval process is governed by § 30.1-27-06.

4.3 Testamentary Trustee

(a) Primary Appointment. Testator appoints [PRIMARY TRUSTEE NAME] as Trustee of each trust created by this Will.
(b) Successors. If the primary cannot serve or a vacancy must be filled, [SUCCESSOR TRUSTEE NAME] shall serve, subject to N.D.C.C. § 59-15-04.
(c) Bond. No Trustee shall be required to furnish bond unless required by the court or the terms of this Will under N.D.C.C. § 59-15-02.

5. PAYMENT OF DEBTS, EXPENSES & TAXES

5.1 Expenses and Claims. The Personal Representative shall pay enforceable funeral expenses, claims, administration expenses, and taxes in the order and manner required by law.

5.2 Apportionment of Taxes. Estate, inheritance, generation-skipping, and other transfer taxes shall be allocated as follows:

[INSERT A NORTH-DAKOTA-COUNSEL-REVIEWED TAX APPORTIONMENT DIRECTION OR “APPORTION AS PROVIDED BY APPLICABLE LAW”]

5.3 Settlement of Claims. The Personal Representative may satisfy and settle claims as authorized by N.D.C.C. § 30.1-18-15(27), subject to the fiduciary duties in § 30.1-18-03.

6. SPECIFIC DEVISES & BEQUESTS

6.1 Tangible Personal Property. I may leave a separate signed writing under N.D.C.C. § 30.1-08-13 disposing of tangible personal property other than money. The writing must describe the items and recipients with reasonable certainty and may be prepared or altered before or after this Will. Property not effectively disposed of by such a writing passes [TO NAME / UNDER THE RESIDUARY CLAUSE].

6.2 Specific Monetary Gifts. The following cash bequests are directed:

(a) [BENEFICIARY A] – $[AMOUNT]
(b) [BENEFICIARY B] – $[AMOUNT]

6.3 Charitable Gifts. [CHARITY NAME], EIN [EIN], shall receive [DESCRIPTION].

6.4 Survival. If a specific Beneficiary does not survive the Testator by [120 HOURS / OTHER PERIOD], the gift passes [TO THE BENEFICIARY'S DESCENDANTS BY REPRESENTATION / TO AN ALTERNATE RECIPIENT / INTO THE RESIDUE].

7. RESIDUARY CLAUSE & CREATION OF THE “[TRUST NAME]”

7.1 Transfer to Trust. I give all the rest, residue, and remainder of my probate estate to the Trustee of the testamentary Trust created in Article 8, to be held and distributed under this Will. N.D.C.C. § 59-12-01 permits creation of a trust by will, and Article 8 is intended to satisfy § 59-12-02.

8. “[TRUST NAME]” – OPERATIVE PROVISIONS

8.1 Trust Purpose

The Trust is a testamentary trust intended to provide for the Beneficiaries under the standards and distribution terms stated below.

8.2 Trust Funding

The Trustee shall receive and hold:

(a) Property passing under Article 7;
(b) Any life-insurance or retirement-plan proceeds payable to the estate or Trustee; and
(c) Any additional property that may be conveyed to the Trust by inter-vivos or testamentary transfer.

8.3 Trustee Powers

Subject to fiduciary duties and this Will, the Trustee may exercise without court authorization the general powers in N.D.C.C. § 59-16-15 and the specific powers in § 59-16-16, including:

1. Invest & reinvest in any prudent investment;
2. Retain original assets;
3. Borrow, encumber, or pledge Trust property;
4. Maintain, sell, lease, or exchange real and personal property;
5. Exercise tax elections;
6. Employ professionals to advise or assist the Trustee;
7. Make distributions in cash or in kind;
8. Sever or consolidate trusts as permitted by N.D.C.C. § 59-16-16(28).

8.4 Fiduciary Standards

8.4.1 Standard of Care. The Trustee shall administer the Trust in good faith under N.D.C.C. § 59-16-01, solely in the Beneficiaries' interests under § 59-16-02, impartially where there are multiple Beneficiaries under § 59-16-03, and with reasonable care, skill, and caution under § 59-16-04. The Trustee shall invest and manage Trust assets under §§ 59-17-01 and 59-17-02.

8.4.2 Trustee Powers Are Fiduciary. All powers remain subject to the fiduciary duties prescribed by North Dakota law.

8.4.3 Information and Reports. The Trustee shall keep qualified Beneficiaries reasonably informed and provide the notices, information, and reports required by N.D.C.C. § 59-16-13, including reports at least annually and at termination to the persons identified there.

8.5 Distributions to Beneficiaries

8.5.1 Discretionary Distributions. Until final distribution, the Trustee may distribute income and principal for each Beneficiary's health, education, maintenance, and support, after considering [OTHER RESOURCES / WITHOUT CONSIDERING OTHER RESOURCES].

8.5.2 Age-Based Principal Withdrawals. Each Child may withdraw the following portions of that Child’s vested share:

• One-third (1/3) at age [AGE e.g., 30]
• One-half (1/2) of the remaining share at age [AGE e.g., 35]
• The balance at age [AGE e.g., 40]

8.5.3 Accumulations. Income not distributed shall be accumulated and added to principal.

8.5.4 Benefits-Sensitive Administration. [INSERT A BENEFITS-COUNSEL-REVIEWED SUPPLEMENTAL-NEEDS SHARE IF A BENEFICIARY RECEIVES OR MAY SEEK MEANS-TESTED BENEFITS].

8.5.5 Termination. The Trust shall terminate upon [SPECIFIED EVENT]. Remaining assets shall then be distributed [EQUALLY / BY REPRESENTATION / OTHER] to [REMAINDER BENEFICIARIES].

8.6 Spendthrift & Creditors’ Rights

Each Beneficiary's interest is held subject to a spendthrift trust. A Beneficiary may not transfer the interest in violation of this provision, and, except as Chapter 59-13 otherwise provides, a creditor or assignee may not reach the interest or a distribution before the Beneficiary receives it. This provision is intended to invoke N.D.C.C. § 59-13-02.

8.7 Termination & Final Distribution

Upon termination, the Trustee shall (i) settle all administrative expenses, (ii) prepare a final accounting, and (iii) distribute remaining Trust property in accordance with Section 8.5.5.

9. BREACH & REMEDIES

9.1 Breach of Trust. A violation by the Trustee of a duty owed to a Beneficiary is a breach of trust under N.D.C.C. § 59-18-01.

9.2 Remedies. A person with standing may ask the district court for a remedy authorized by N.D.C.C. § 59-18-01, including to:

(a) Compel performance or enjoin a breach;
(b) Order an accounting or redress through payment of money or restoration of property;
(c) Suspend or remove the Trustee or appoint a special fiduciary;
(d) Order any other equitable relief.

9.3 Removal and Vacancy. Trustee removal is governed by N.D.C.C. § 59-15-06. Any resulting vacancy shall be filled under § 59-15-04 and Section 4.3.

9.4 Costs and Fees. Costs and attorney fees are available only when authorized by applicable law or court order.

10. RISK ALLOCATION

10.1 Exculpation. No provision of this Will relieves a Trustee from liability for a breach committed in bad faith or with reckless indifference to the Trust's purposes, or if the term was inserted through the abuse described in N.D.C.C. § 59-18-08.

10.2 Personal Liability. N.D.C.C. § 59-18-10 governs a Trustee's personal liability on fiduciary contracts, torts, and obligations arising from ownership or control of Trust property. This Will does not impose a blanket asset-value liability cap.

10.3 Insurance. The Trustee is authorized under N.D.C.C. § 59-16-16(11) to insure the Trustee against liability, with premiums payable from Trust property.

10.4 No Contractual Excuse from Fiduciary Duties. No force-majeure or private notice-and-cure provision excuses a duty imposed by applicable trust law.

11. DISPUTE RESOLUTION

11.1 Governing Law. North Dakota substantive law governs.

11.2 Court. The district court has jurisdiction over probate, testamentary, guardianship, and trust matters under N.D.C.C. § 30.1-02-02. Venue remains governed by applicable law.

11.3 Alternative Dispute Resolution. N.D.C.C. § 59-16-16(23) permits a Trustee to resolve a dispute concerning interpretation or administration by mediation, arbitration, or another ADR procedure. This clause does not require ADR or remove any matter from a court that has exclusive jurisdiction.

11.4 Trial Rights. This Will does not waive any trial right supplied by applicable law.

11.5 Injunctive Relief. Under N.D.C.C. § 59-18-01, the court may enjoin a breach of trust that has occurred or may occur.

12. GENERAL PROVISIONS

12.1 Amendment and Revocation. Before death, the Testator may amend or revoke this Will only through a method permitted by North Dakota law. After death, any modification or reformation must be authorized by applicable law and court order.

12.2 Severability. If any provision is held invalid, the remaining provisions shall remain in force to the extent permitted by law.

12.3 Headings. Article and section headings are for convenience only and do not affect interpretation.

12.4 Successors & Assigns. References to Fiduciaries include their lawful successors.

12.5 Coordination. This Instrument must be coordinated with beneficiary designations, survivorship ownership, transfer-on-death arrangements, and any other governing instrument.

12.6 Execution. This Will must be executed through a method authorized by N.D.C.C. § 30.1-08-02. This form uses the two-witness method and the self-proving affidavit in § 30.1-08-04.

12.7 Gender & Number. Words of any gender include all genders; words in singular include plural and vice-versa as context requires.

12.8 No-Contest Clause. [OPTIONAL NORTH DAKOTA CLAUSE TO BE DRAFTED AFTER COUNSEL REVIEWS THE BENEFICIARIES, PROPOSED SCOPE, AND CONTROLLING LAW].

13. EXECUTION & ATTESTATION

IN WITNESS WHEREOF, I, [TESTATOR FULL LEGAL NAME], have signed this Last Will & Testament and Testamentary Trust on the date written below.

______________________________
[TESTATOR SIGNATURE]
Date: ________________________

ATTESTATION CLAUSE

We, the undersigned witnesses, sign within a reasonable time after witnessing the Testator sign this Will or acknowledge the Testator's signature or this Will.

Witness 1: ___________________________ Date: __________
Name: [PRINT]
Address: [ADDRESS]

Witness 2: ___________________________ Date: __________
Name: [PRINT]
Address: [ADDRESS]

SELF-PROVING AFFIDAVIT — N.D.C.C. § 30.1-08-04

State of North Dakota )
County of ___________ ) ss.

I, [TESTATOR], the Testator, sign my name to this instrument on [__/__/____] and, being first sworn, declare to the undersigned authority that I sign and execute this instrument as my Will; that I sign it willingly or willingly direct another to sign for me; that I execute it as my free and voluntary act for the purposes expressed; and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.

_________________________________
[TESTATOR], Testator

We, [WITNESS 1] and [WITNESS 2], the witnesses, sign our names to this instrument and, being first sworn, declare to the undersigned authority that the Testator signs and executes this instrument as the Testator's Will; that the Testator signs it willingly or willingly directs another to sign; that each of us, in the presence and hearing of the Testator, signs this Will as witness to the Testator's signing; and that to the best of our knowledge the Testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.

_________________________________
[WITNESS 1], Witness

_________________________________
[WITNESS 2], Witness

Subscribed, sworn to, and acknowledged before me by [TESTATOR], the Testator, and subscribed and sworn to before me by [WITNESS 1] and [WITNESS 2], the witnesses, on [__/__/____].

_________________________________
Notary Public for the State of North Dakota
Commission Expires: _____________

[SEAL]

ATTORNEY REVIEW CHECKLIST

☐ Confirm family status and define Children, Descendants, and By Representation.

☐ Coordinate this Will with beneficiary designations, survivorship property, transfer-on-death arrangements, and any existing trust.

☐ Review surviving-spouse and omitted-family protections and the selected survival periods.

☐ Insert a tax-apportionment direction suited to the Testator's assets and objectives.

☐ Confirm every specific gift, contingent gift, trust share, distribution standard, age, and remainder Beneficiary.

☐ Confirm Personal Representative, Trustee, and guardian eligibility, succession, conflicts, compensation, and bond directions.

☐ Conduct the N.D.C.C. §§ 30.1-08-02 and 30.1-08-04 execution and self-proving ceremony without later dispositive insertions.

SOURCES AND REFERENCES

• North Dakota Legislative Branch, N.D.C.C. Chapter 30.1-08 — Wills
• North Dakota Legislative Branch, N.D.C.C. Chapter 30.1-02 — Scope, Jurisdiction, and Courts
• North Dakota Legislative Branch, N.D.C.C. Chapter 30.1-17 — Personal Representative
• North Dakota Legislative Branch, N.D.C.C. Chapter 30.1-18 — Powers and Duties
• North Dakota Legislative Branch, N.D.C.C. Chapter 30.1-27 — Guardians of Minors
• North Dakota Legislative Branch, N.D.C.C. Chapter 59-12 — Creation, Validity, Modification, and Termination of Trust
• North Dakota Legislative Branch, N.D.C.C. Chapter 59-13 — Creditor Claims and Spendthrift Trusts
• North Dakota Legislative Branch, N.D.C.C. Chapter 59-15 — Office of Trustee
• North Dakota Legislative Branch, N.D.C.C. Chapter 59-16 — Duties and Powers of Trustee
• North Dakota Legislative Branch, N.D.C.C. Chapter 59-17 — Prudent Investor Standards
• North Dakota Legislative Branch, N.D.C.C. Chapter 59-18 — Trustee Liability and Dealings