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Intestate Succession

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A person who dies without a will is said to have died intestate.  This page introduces the concept of intestate succession.

A critical issue then is who are the heirs to the decedent's property if there is no will to address this question.  The solution is that the state legislature answers the question by specifying who will receive the property (who will be the heirs to inherit the decedent's assets).  These statutes are referred to as the intestate succession law

Each state has its own statutory scheme for distributing intestate property.  North Dakota's statute is codified at N.D.C.C. 30.1-04.  The following points illustrate the application of that statute.

Assuming decedent (D) had no will (entire estate passes intestate), the property will be divided according to the following scheme.

If the decedent is survived by a spouse and children (or other descendants):

  • If all children are theirs together, the surviving spouse receives the entire estate.
  • If at least one child of the decedent OR one child of the surviving spouse is not their child together, the surviving spouse receives $150,000 and half of remainder of the estate; the rest of D’s estate is divided among D’s children.
    • If D’s child has died but has children (D’s grandchildren), the child’s share is divided among D’s grandchildren from that child; that is, the grandchildren “take by representation.”
If the decedent is survived by a spouse but no children or other descendants:
  • If D’s parents are dead, the surviving spouse receives the entire estate.
  • If D’s parent(s) survive D, the surviving spouse receives $250,000 plus ¾ of remainder of estate; the rest of the estate goes to D’s parent(s).

If the decedent is survived by children or other descendants, but no spouse:

  • The estate transfers to D's descendants "by representation." For example, if D has no spouse, but is survived by several children, D's estate is divided equally among the children.
  • A second example: if D’s child has died but has children (D’s grandchildren), the child’s share is divided among D’s grandchildren from that child; that is, the grandchildren “take by representation.”

If the decedent has no surviving spouse, children, or other descendants:

  • The estate transfers to D's surviving parents; it is divided equally between the two parents if both are alive, or transfers entirely to the surviving parent if only one is alive.

If the decedent has no surviving spouse, children, other descendants, or parents:

  • If D has siblings, the estate is divided among D’s siblings, or their children (D’s nephews and nieces), by representation, if the sibling has died.
  • If D has no siblings, the estate is divided among D’s grandparents, uncles, aunts, first cousins and their children, by representation, with half going to D’s mother’s side of the family and half going to D’s father’s side of the family.

The application of the intestate succession laws is broader than just cases when someone dies without a will.  The statute also applies if a decedent's will does not distribute all the property of the estate.  This often arises because the decedent prepared a will but failed to address all of his/her property.  In such a situation, the intestate succession laws specify who will inherit the property that is not addressed in the will.

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