Petition for Probate of Will and for Letters Testamentary - North Dakota

PETITION FOR PROBATE OF WILL AND FOR LETTERS TESTAMENTARY

FORMAL-PROBATE DRAFTING FRAMEWORK: North Dakota Courts says formal-probate
forms are not available. This is not an official court form. Counsel must
supply every current rule, local-practice, filing, verification, and service
requirement before use.

STATE OF NORTH DAKOTA, COUNTY OF [COUNTY] — IN THE DISTRICT COURT, [____] JUDICIAL DISTRICT

TABLE OF CONTENTS

1. Caption and Case Information
2. Petitioner (Applicant) Information
3. Decedent Information
4. Basis for Jurisdiction and Venue
5. The Will Offered for Probate
6. Devisees and Beneficiaries Under the Will
7. Heirs and Other Interested Persons Entitled to Notice
8. Nomination and Priority of Personal Representative
9. Bond
10. Prayer for Relief
11. Petitioner Review and Signature
12. Certificate of Service / Notice
13. Attachments Checklist

1. CAPTION AND CASE INFORMATION

IN THE MATTER OF THE ESTATE OF:

[DECEDENT FULL LEGAL NAME], also known as [AKA, if any], Deceased.

2. PETITIONER (APPLICANT) INFORMATION

3. DECEDENT INFORMATION

4. BASIS FOR JURISDICTION AND VENUE

a. The Decedent died on [__/__/____] domiciled in [COUNTY] County, North Dakota.

b. Venue is proper in this Court under N.D.C.C. § 30.1-13-01 because the Decedent was domiciled in [COUNTY] County at the time of death.

c. ☐ The Decedent was not domiciled in North Dakota at death; venue is proper because property of the Decedent was located in [COUNTY] County at the time of death. Venue statement (§ 30.1-14-01(1)(a)(3)): [________________________________].

d. The Decedent died testate, leaving a Last Will and Testament dated [__/__/____] [and codicil(s) dated [__/__/____]].

e. Time limit (§ 30.1-14-01(1)(a)(6)): Three years or less have elapsed
since the Decedent's death. If more than three years have elapsed, do not use
this packet until counsel separately verifies and pleads a statutory
tardy-proceeding basis.

f. No personal representative of the Decedent has been appointed in this state or elsewhere whose appointment has not been terminated. ☐ Except: [________________________________] (name and address; § 30.1-14-01(1)(a)(4)).

g. The Petitioner ☐ has not received and is not aware of / ☐ has received a demand for notice of any probate or appointment proceeding concerning the Decedent (§ 30.1-14-01(1)(a)(5)).

5. THE WILL OFFERED FOR PROBATE

a. The original Last Will and Testament of the Decedent, dated [__/__/____], ☐ is in the possession of the court, ☐ accompanies this application/petition, or ☐ an authenticated copy of the Will probated in another jurisdiction accompanies this application (§ 30.1-14-01(1)(b)(1)).

b. Execution route under N.D.C.C. § 30.1-08-02:

☐ Witnessed route — at least two individuals signed within a reasonable time
after witnessing the statutory signing or acknowledgment event. Identify them:

☐ Acknowledgment route — the testator acknowledged the Will before a notary
public or other individual authorized to take acknowledgments. Identify the
officer and date: [______________________________________________________].

c. Self-proving status (check one):

☐ The witnessed Will is self-proved pursuant to N.D.C.C.
§ 30.1-08-04. Under § 30.1-15-06(1), in a contested proper-execution case it
complies with execution requirements without attesting-witness testimony when
the will and annexed acknowledgment and affidavits are filed, unless fraud or
forgery evidence affects the acknowledgment or affidavit.

☐ The Will used § 30.1-08-02(1)(c)(2)'s acknowledgment route but is not
self-proved. Section 30.1-15-06(2) supplies a rebuttable proper-execution
presumption upon filing in a contested case.

☐ The witnessed Will is neither notarized nor self-proved. Counsel has prepared
the witness-testimony or other-evidence route required by § 30.1-15-06(3).

d. To the best of the Petitioner's knowledge, the Petitioner believes the Will to have been validly executed (§ 30.1-14-01(1)(b)(2)); and after the exercise of reasonable diligence, the Petitioner is unaware of any instrument revoking the Will and believes the instrument that is the subject of this application to be the Decedent's last will (§ 30.1-14-01(1)(b)(3)).

e. ☐ (Formal petitions) If the original Will is neither in the court's possession nor accompanies the petition and no authenticated copy accompanies it, this petition states the contents of the Will and that it is lost, destroyed, or otherwise unavailable (§ 30.1-15-02(1)(c)).

6. DEVISEES AND BENEFICIARIES UNDER THE WILL

The following persons and entities are devisees under the Will:

7. HEIRS AND OTHER INTERESTED PERSONS ENTITLED TO NOTICE

The names and addresses of the surviving spouse, children, heirs, and devisees, and the ages of any who are minors, so far as known or ascertainable with reasonable diligence (§ 30.1-14-01(1)(a)(2)):

☐ To the best of the Petitioner's knowledge, the persons listed above are all the heirs and devisees of the Decedent.

8. NOMINATION AND PRIORITY OF PERSONAL REPRESENTATIVE

a. In the Will, the Decedent nominated the Petitioner, [PETITIONER FULL LEGAL NAME], to serve as Executor / Personal Representative of the estate.

b. If the Will is probated and its nomination controls, the Petitioner claims
priority under N.D.C.C. § 30.1-13-03 as the person with priority determined
by a probated will, including a person nominated by a power conferred in a will.

c. The Petitioner is at least eighteen, is not disqualified, and has not been
found unsuitable by the court in formal proceedings.

d. ☐ This application/petition describes the Will by date of execution and states the name, address, and priority for appointment of the person whose appointment is sought, as required for appointment under a will (§ 30.1-14-01(1)(c)).

e. ☐ Co-personal representatives are nominated: [________________________________]. ☐ A person of prior or equal right renounces or nominates the Petitioner, as shown by attached writing.

9. BOND

a. ☐ The Will relieves the Personal Representative of bond. In a formal
proceeding, § 30.1-17-03 ordinarily gives that relief effect unless an
interested party requests bond and the court finds it desirable.

b. ☐ The Will expressly requires bond. Counsel will address whether the court
should retain or dispense with that requirement under § 30.1-17-03.

c. ☐ Bond is required because: ☐ an interested person or creditor with an
interest or claim over $1,000 made a written demand under § 30.1-17-05;
☐ the court ordered bond. The Petitioner will furnish bond or other suitable
security in the amount of $[________________] (§ 30.1-17-04).

Estimated value of the personal estate and one year's income: $[________________]

10. PRAYER FOR RELIEF

WHEREFORE, the Petitioner respectfully requests that the Court:

a. After notice and hearing, enter an order probating the Will and determining
the Decedent's testacy and heirs under §§ 30.1-15-01 and 30.1-15-02;

b. Admit the Decedent's Last Will and Testament dated [__/__/____] [and codicil(s)] to probate;

c. Appoint the Petitioner as Executor / Personal Representative as nominated in the Will, the Petitioner having first priority under § 30.1-13-03;

d. Direct that, upon qualification under § 30.1-17-01 (filing any required bond and a statement of acceptance of duties), Letters Testamentary be issued to the Petitioner;

e. Fix or dispense with bond consistent with the Will and § 30.1-17-03; and

f. Grant such other and further relief as the Court deems just and proper.

11. PETITIONER REVIEW AND SIGNATURE

I, [PETITIONER FULL LEGAL NAME], have read the foregoing formal petition and
state that its factual representations are accurate and complete to the best of
my knowledge and belief.

Executed on [__/__/____] at [CITY], North Dakota.

Petitioner Signature: ______________________________________

Printed Name: [PETITIONER FULL LEGAL NAME]

12. CERTIFICATE OF SERVICE / NOTICE

Under N.D.C.C. §§ 30.1-15-03 and 30.1-03-01, complete the current formal-hearing
notice plan:

☐ Mail or personally deliver notice to the surviving spouse, children, other
heirs, specified devisees and executors, every un-terminated personal
representative, and every demandant for notice.

☐ Mail by certified or ordinary first-class mail, or personally deliver, at
least fourteen days before the hearing unless a court order changes the method
or time for good cause.

☐ If an interested person's identity or address is unknown after reasonable
diligence, publish once a week for three consecutive weeks, with the last
publication at least ten days before the hearing.

☐ File proof of notice on or before the hearing.

Signature: ______________________________________
Printed Name: [PETITIONER / ATTORNEY NAME]
North Dakota Bar ID No.: [________________] (if applicable)
Firm / Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

13. ATTACHMENTS CHECKLIST

Counsel must determine which attachments and proposed papers current law,
orders, and local practice require. This list is a preparation control, not a
statement that every item is mandatory.

☐ This formal Petition for Probate of Will and Appointment of Personal Representative
☐ Original Last Will and Testament [and codicil(s)] (or authenticated copy probated elsewhere)
☐ Certified copy of Death Certificate
☐ Attached or annexed acknowledgment and witness affidavits if relying on § 30.1-08-04 self-proof
☐ Execution proof selected under § 30.1-15-06 if the will is not self-proved
☐ Acceptance of Appointment / Statement of acceptance of duties — § 30.1-17-01
☐ Proposed Order Admitting Will and Appointing Personal Representative, if current practice permits
☐ Letters Testamentary (proposed)
☐ Bond (if required) — §§ 30.1-17-03, 30.1-17-04
☐ Formal-hearing notice papers and proof under §§ 30.1-15-03 and 30.1-03-01

SOURCES AND REFERENCES

• N.D.C.C. Chapter 30.1-02 — Probate Jurisdiction
• N.D.C.C. Chapter 30.1-03 — Notice
• N.D.C.C. Chapter 30.1-08 — Wills
• N.D.C.C. Chapter 30.1-13 — Venue and Appointment Priority
• N.D.C.C. Chapter 30.1-14 — Incorporated Application Statements
• N.D.C.C. Chapter 30.1-15 — Formal Testacy and Appointment Proceedings
• N.D.C.C. Chapter 30.1-17 — Qualification and Bond
• North Dakota Courts — Formal Probate