2013 North Dakota Century Code Title 30.1 Uniform Probate Code Chapter 30.1-01 Short Title - Construction - General Provisions - Definitions
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TITLE 30.1
UNIFORM PROBATE CODE
CHAPTER 30.1-01
SHORT TITLE - CONSTRUCTION - GENERAL PROVISIONS - DEFINITIONS
30.1-01-01. (1-101) Short title.
This title shall be known and may be cited as the Uniform Probate Code.
30.1-01-02. (1-102) Purposes - Rule of construction.
1. This title shall be liberally construed and applied to promote its underlying purposes
and policies.
2. The underlying purposes and policies of this title are:
a. To simplify and clarify the law concerning the affairs of decedents, missing
persons, protected persons, minors, and incapacitated persons.
b. To discover and make effective the intent of a decedent in distribution of the
decedent's property.
c. To promote a speedy and efficient system for liquidating the estate of the
decedent and making distribution to the decedent's successors.
d. To facilitate the use and enforcement of certain trusts.
e. To make uniform the law among the various jurisdictions.
30.1-01-03. (1-106) Effect of fraud and evasion.
Whenever fraud has been perpetrated in connection with any proceeding or in any
statement filed under this title, or if fraud is used to avoid or circumvent the provisions or
purposes of this title, any person injured thereby may obtain appropriate relief against the
perpetrator of the fraud or restitution from any person, other than a bona fide purchaser,
benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within
two years after the discovery of the fraud, but no proceeding may be brought against one not a
perpetrator of the fraud later than five years after the time of commission of the fraud. This
section has no bearing on remedies relating to fraud practiced on a decedent during the
decedent's lifetime which affects the succession of the decedent's estate.
30.1-01-04. (1-107) Evidence of death or status.
In addition to the rules of evidence in courts of general jurisdiction, the following rules
relating to a determination of death and status apply:
1. Death occurs when an individual is determined to be dead under chapter 23-06.3.
2. A certified or authenticated copy of a death certificate purporting to be issued by an
official or agency of the place where the death purportedly occurred is prima facie
evidence of the fact, place, date, and time of death, and the identity of the decedent.
3. A certified or authenticated copy of any record or report of a governmental agency,
domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie
evidence of the status and of the dates, circumstances, and places disclosed by the
record or report.
4. In the absence of prima facie evidence of death under subsection 2 or 3, the fact of
death may be established by clear and convincing evidence, including circumstantial
evidence.
5. An individual whose death is not established under this section, who is absent for a
continuous period of five years, during which the person has not been heard from, and
whose absence is not satisfactorily explained after diligent search or inquiry, is
presumed to be dead. The death is presumed to have occurred at the end of the
period unless there is sufficient evidence for determining that death occurred earlier.
6. In the absence of evidence disputing the time of death stated on a document
described in subsection 2 or 3, a document described in subsection 2 or 3 that states a
time of death one hundred twenty hours or more after the time of death of another
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individual, however the time of death of the other individual is determined, establishes
by clear and convincing evidence that the individual survived the other individual by
one hundred twenty hours.
30.1-01-05. (1-108) Acts by holder of general power.
For the purpose of granting consent or approval with regard to the acts or accounts of a
personal representative or trustee, including relief from liability or penalty for failure to post
bond, to register a trust, or to perform other duties, and for purposes of consenting to
modification or termination of a trust or to deviation from its terms, the sole holder or all
coholders of a presently exercisable general power of appointment, including one in the form of
a power of amendment or revocation, are deemed to act for beneficiaries to the extent their
interests (as objects, takers in default, or otherwise) are subject to the power.
30.1-01-06. (1-201) General definitions.
Subject to additional definitions contained in the subsequent chapters which are applicable
to specific chapters, and unless the context otherwise requires, in this title:
1. "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney,
an individual authorized to make decisions concerning another's health care, and an
individual authorized to make decisions for another under a natural death act.
2. "Application" means a written request to the court for an order of informal probate or
appointment under chapter 30.1-14.
3. "Augmented estate" means the estate described in section 30.1-05-02.
4. "Beneficiary", as it relates to a trust beneficiary, includes a person who has any
present or future interest, vested or contingent, and also includes the owner of an
interest by assignment or other transfer; as it relates to a charitable trust, includes any
person entitled to enforce the trust; as it relates to a beneficiary of a beneficiary
designation, refers to a beneficiary of an account with a payable on death designation,
of a security registered in beneficiary form transferable on death, or other nonprobate
transfer at death; and, as it relates to a "beneficiary designated in a governing
instrument", includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary
of a beneficiary designation, a donee, or a person in whose favor a power of attorney
or a power held in any individual, fiduciary, or representative capacity is exercised.
5. "Beneficiary designation" refers to a governing instrument naming a beneficiary of an
account with payable on death designation, of a security registered in beneficiary form
transferable on death, or other nonprobate transfer at death.
6. "Child" includes an individual entitled to take as a child under this title by intestate
succession from the parent whose relationship is involved and excludes a person who
is only a stepchild, a foster child, a grandchild, or any more remote descendant.
7. "Claims", in respect to estates of decedents and protected persons, includes liabilities
of the decedent or protected person whether arising in contract, in tort, or otherwise,
and liabilities of the estate which arise at or after the death of the decedent or after the
appointment of a conservator, including funeral expenses and expenses of
administration. The term does not include estate or inheritance taxes or demands or
disputes regarding title of a decedent or protected person to specific assets alleged to
be included in the estate.
8. "Conservator" means a person who is appointed by a court to manage the estate of a
protected person, and includes limited conservators as defined in this section.
9. "Court" means the court having jurisdiction in matters relating to the affairs of
decedents.
10. "Descendant" of an individual means all descendants of all generations, with the
relationship of parent and child at each generation being determined by the definition
of child and parent contained in this title.
11. "Devise", when used as a noun, means a testamentary disposition of real or personal
property, and when used as a verb, means to dispose of real or personal property by
will.
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"Devisee" means a person designated in a will to receive a devise. In the case of a
devise to an existing trust or trustee, or to a trustee or trust described by will, the trust
or trustee is the devisee and the beneficiaries are not devisees.
"Disability" means cause for a protective order as described in section 30.1-29-01.
"Distributee" means any person who has received property of a decedent from the
decedent's personal representative other than as a creditor or purchaser. A
testamentary trustee is a distributee only to the extent of distributed assets or
increment thereto remaining in the trustee's hands. A beneficiary of a testamentary
trust to whom the trustee has distributed property received from a personal
representative is a distributee of the personal representative. For the purposes of this
provision, "testamentary trustee" includes a trustee to whom assets are transferred by
will to the extent of the devised assets.
"Estate" includes the property of the decedent, trust, or other person whose affairs are
subject to this title as originally constituted and as it exists from time to time during
administration.
"Exempt property" means that property of a decedent's estate which is described in
section 30.1-07-01.
"Fiduciary" includes a personal representative, guardian, conservator, and trustee.
"Foreign personal representative" means a personal representative appointed by
another jurisdiction.
"Formal proceedings" means proceedings conducted before a judge with notice to
interested persons.
"Governing instrument" means a deed, will, trust, insurance or annuity policy, account
with payable on death designation, security registered in beneficiary form transferable
on death, pension, profit-sharing, retirement, or similar benefit plan, instrument
creating or exercising a power of appointment or a power of attorney, or a dispositive,
appointive, or nominative instrument of any similar type.
"Guardian" means a person who or nonprofit corporation that has qualified as a
guardian of a minor or incapacitated person pursuant to testamentary or court
appointment, and includes limited guardians as defined in this section, but excludes
one who is merely a guardian ad litem.
"Heirs", except as controlled by section 30.1-09.1-11, means persons, including the
surviving spouse and the state, who are entitled under the statutes of intestate
succession to the property of a decedent.
"Incapacitated person" means an individual described in section 30.1-26-01.
"Informal proceedings" means those conducted by the court for probate of a will or
appointment of a personal representative without notice to interested persons.
"Interested person" includes heirs, devisees, children, spouses, creditors,
beneficiaries, and any others having a property right in or claim against a trust estate
or the estate of a decedent, ward, or protected person. The term also includes persons
having priority for appointment as personal representative and other fiduciaries
representing interested persons. The meaning as it relates to particular persons may
vary from time to time and must be determined according to the particular purposes of,
and matter involved in, any proceeding.
"Issue" of a person means descendant as defined in subsection 10.
"Joint tenants with the right of survivorship" and "community property with the right of
survivorship" includes coowners of property held under circumstances that entitle one
or more to the whole of the property on the death of the other or others, but excludes
forms of coownership registration in which the underlying ownership of each party is in
proportion to that party's contribution.
"Lease" includes an oil, gas, or other mineral lease.
"Letters" includes letters testamentary, letters of guardianship, letters of administration,
and letters of conservatorship.
"Limited conservator" means a person or nonprofit corporation, appointed by the court,
to manage only those financial resources specifically enumerated by the court for the
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person with limited capacity and includes limited conservators as described by section
30.1-29-20.
"Limited guardian" means a person or nonprofit corporation, appointed by the court, to
supervise certain specified aspects of the care of a person with limited capacity and
includes limited guardians as described by section 30.1-28-04.
"Minor" means a person who is under eighteen years of age.
"Mortgage" means any conveyance, agreement, or arrangement in which property is
encumbered or used as security.
"Nonresident decedent" means a decedent who was domiciled in another jurisdiction
at the time of death.
"Organization" means a corporation, limited liability company, government or
governmental subdivision or agency, business trust, estate, trust, partnership, joint
venture, association, or any other legal or commercial entity.
"Parent" includes any person entitled to take, or who would be entitled to take if the
child died without a will, as a parent under this title, by intestate succession from the
child whose relationship is in question and excludes any person who is only a
stepparent, foster parent, or grandparent.
"Payer" means a trustee, insurer, business entity, employer, government,
governmental agency or subdivision, or any other person authorized or obligated by
law or a governing instrument to make payments.
"Person" means an individual, a corporation, a limited liability company, an
organization, or other legal entity.
"Person with limited capacity" is as defined in section 30.1-26-01.
"Personal representative" includes executor, administrator, successor personal
representative, special administrator, and persons who perform substantially the same
function under the law governing their status. "General personal representative"
excludes special administrator.
"Petition" means a written request to the court for an order after notice.
"Proceeding" includes action at law and suit in equity.
"Property" includes both real and personal property or any interest therein and means
anything that may be the subject of ownership.
"Protected person" is as defined in section 30.1-26-01.
"Protective proceeding" means a proceeding described in section 30.1-26-01.
"Record" means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.
"Security" includes any note, stock, treasury stock, bond, debenture, membership
interest in a limited liability company, evidence of indebtedness, certificate of interest
or participation in an oil, gas, or mining title or lease or in payments out of production
under such a title or lease, collateral trust certificate, transferable share, voting trust
certificate or, in general, any interest or instrument commonly known as a security, or
any certificate of interest or participation, any temporary or interim certificate, receipt,
or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of
the foregoing.
"Settlement", in reference to a decedent's estate, includes the full process of
administration, distribution, and closing.
"Sign" means, with present intent to authenticate or adopt a record other than a will, to
execute or adopt a tangible symbol or to attach to or logically associate with the record
an electronic symbol, sound, or process.
"Special administrator" means a personal representative as described by sections
30.1-17-14 through 30.1-17-18.
"State" means a state of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or insular possession subject to the
jurisdiction of the United States.
"Successor personal representative" means a personal representative, other than a
special administrator, who is appointed to succeed a previously appointed personal
representative.
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"Successors" means persons, other than creditors, who are entitled to property of a
decedent under the decedent's will or this title.
"Supervised administration" refers to the proceedings described in chapter 30.1-16.
"Survive" means that an individual has neither predeceased an event, including the
death of another individual, nor predeceased an event under sections 30.1-04-04 and
30.1-09.1-02. The term includes its derivatives, such as "survives", "survived",
"survivor", and "surviving".
"Testacy proceeding" means a proceeding to establish a will or determine intestacy.
"Trust" includes an express trust, private or charitable, with additions thereto, wherever
and however created. The term also includes a trust created or determined by
judgment or decree under which the trust is to be administered in the manner of an
express trust. The term excludes other constructive trusts and excludes resulting
trusts, conservatorships, personal representatives, trust accounts as defined in
custodial arrangements pursuant to chapter 11-22, chapter 12-48, sections 25-01.1-19
to 25-01.1-21, chapter 32-10, section 32-16-37, chapter 32-26, former chapter 47-24,
chapter 47-24.1, business trusts providing for certificates to be issued to beneficiaries,
common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts
for the primary purpose of paying debts, dividends, interest, salaries, wages, profits,
pensions, or employee benefits of any kind, and any arrangement under which a
person is nominee or escrowee for another.
"Trustee" includes an original, additional, or successor trustee, whether or not
appointed or confirmed by court.
"Ward" means an individual described in section 30.1-26-01.
"Will" includes codicil and any testamentary instrument that merely appoints an
executor, revokes or revises another will, nominates a guardian, or expressly excludes
or limits the right of an individual or class to succeed to property of the decedent
passing by intestate succession.
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