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CHAPTER 30.1-17
PERSONAL REPRESENTATIVE - APPOINTMENT, CONTROL, AND TERMINATION
30.1-17-01. (3-601) Qualification.
Prior to receiving letters, a personal representative shall qualify by filing with the appointing
court any required bond and a statement of acceptance of the duties of the office.
30.1-17-02. (3-602) Acceptance of appointment - Consent to jurisdiction.
By accepting appointment, a personal representative submits personally to the jurisdiction
of the court in any proceeding relating to the estate that may be instituted by any interested
person. Notice of any proceeding shall be delivered to the personal representative, or mailed by
ordinary first-class mail to the personal representative's address as listed in the application or
petition for appointment or as thereafter reported to the court and to the personal
representative's address as then known to the petitioner.
30.1-17-03. (3-603) Bond not required without court order - Exceptions.
No bond is required of a personal representative appointed in informal proceedings, except:
1. Upon the appointment of a special administrator;
2. When an executor or other personal representative is appointed to administer an
estate under a will containing an express requirement of bond; or
3. When bond is required under section 30.1-17-05.
Bond may be required by court order at the time of appointment of a personal representative
appointed in any formal proceeding, except that bond is not required of a personal
representative appointed in formal proceedings if the will relieves the personal representative of
bond, unless bond has been requested by an interested party and the court is satisfied that it is
desirable. Bond required by any will may be dispensed with in formal proceedings upon
determination by the court that it is not necessary. No bond is required of any personal
representative who, pursuant to statute, has deposited cash or collateral with an agency of this
state to secure performance of the personal representative's duties.
30.1-17-04. (3-604) Bond amount - Security - Procedure - Reduction.
If bond is required and the provisions of the will or order do not specify the amount, unless
stated in that person's application or petition, the person qualifying shall file a statement under
oath with the court indicating that person's best estimate of the value of the personal estate of
the decedent and of the income expected from the personal and real estate during the next
year, and shall execute and file a bond with the court, or give other suitable security, in an
amount not less than the estimate. The court shall determine that the bond is duly executed by
a corporate surety, or one or more individual sureties whose performance is secured by pledge
of personal property, mortgage on real property, or other adequate security. The court may
permit the amount of the bond to be reduced by the value of assets of the estate deposited with
a domestic financial institution, as defined in section 30.1-31-02, in a manner that prevents their
unauthorized disposition. On petition of the personal representative or another interested
person, the court may excuse a requirement of bond, increase or reduce the amount of the
bond, release sureties, or permit the substitution of another bond with the same or different
sureties.
30.1-17-05. (3-605) Demand for bond by interested person.
Any person apparently having an interest in the estate worth in excess of one thousand
dollars, or any creditor having a claim in excess of one thousand dollars, may make a written
demand that a personal representative give bond. The demand must be filed with the court and
a copy mailed to the personal representative if appointment and qualification have occurred.
Thereupon, bond is required, but the requirement ceases if the person demanding bond ceases
to be interested in the estate, or if bond is excused as provided in section 30.1-17-03 or
30.1-17-04. After receiving notice and until the filing of the bond or cessation of the requirement
of bond, the personal representative shall refrain from exercising any powers of office except as
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necessary to preserve the estate. Failure of the personal representative to meet a requirement
of bond by giving suitable bond within thirty days after receipt of notice is cause for removal and
appointment of a successor personal representative.
30.1-17-06. (3-606) Terms and conditions of bonds.
1. The following requirements and provisions apply to any bond required by this chapter:
a. Bonds shall name the state of North Dakota as obligee for the benefit of the
persons interested in the estate and shall be conditioned upon the faithful
discharge by the fiduciary of all duties according to law.
b. Unless otherwise provided by the terms of the approved bond, sureties are jointly
and severally liable with the personal representative and with each other. The
address of sureties shall be stated in the bond.
c. By executing an approved bond of a personal representative, the surety consents
to the jurisdiction of the probate court which issued letters to the primary obligor
in any proceedings pertaining to the fiduciary duties of the personal
representative and naming the surety as a party. Notice of any proceeding shall
be delivered to the surety or mailed to the surety by registered or certified mail at
the surety's address as listed with the court where the bond is filed and to the
surety's address as then known to the petitioner.
d. On petition of a successor personal representative, any other personal
representative of the same decedent, or any interested person, a proceeding in
the court may be initiated against a surety for breach of the obligation of the bond
of the personal representative.
e. The bond of the personal representative is not void after the first recovery but
may be proceeded against from time to time until the whole penalty is exhausted.
2. No action or proceeding may be commenced against the surety on any matter as to
which an action or proceeding against the primary obligor is barred by adjudication or
limitation.
30.1-17-07. (3-607) Order restraining personal representative.
1. On petition of any person who appears to have an interest in the estate, the court, by
temporary order, may restrain a personal representative from performing specified acts
of administration, disbursement, or distribution, or exercise of any powers or discharge
of any duties of the personal representative's office, or make any other order to secure
proper performance of the personal representative's duty, if it appears to the court that
the personal representative otherwise may take some action which would jeopardize
unreasonably the interest of the applicant or of some other interested person. Persons
with whom the personal representative may transact business may be made parties.
2. The matter shall be set for hearing within ten days unless the parties otherwise agree.
Notice, as the court directs, shall be given to the personal representative and the
personal representative's attorney of record, if any, and to any other parties named
defendant in the petition.
30.1-17-08. (3-608) Termination of appointment - General.
Termination of appointment of a personal representative occurs as indicated in sections
30.1-17-09 through 30.1-17-12. Termination ends the right and power pertaining to the office of
personal representative as conferred by this title or any will, except that a personal
representative, at any time prior to distribution or until restrained or enjoined by court order, may
perform acts necessary to protect the estate and may deliver the assets to a successor
representative. Termination does not discharge a personal representative from liability for
transactions or omissions occurring before termination, or relieve the personal representative of
the duty to preserve assets subject to the personal representative's control, to account therefor,
and to deliver the assets. Termination does not affect the jurisdiction of the court over the
personal representative, but terminates the personal representative's authority to represent the
estate in any pending or future proceeding.
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30.1-17-09. (3-609) Termination of appointment - Death or disability.
The death of a personal representative or the appointment of a conservator for the estate of
a personal representative terminates the personal representative's appointment. Until
appointment and qualification of a successor or special representative to replace the deceased
or protected representative, the representative of the estate of the deceased or protected
personal representative, if any, has the duty to protect the estate possessed and being
administered by the decedent or ward at the time the decedent's or ward's appointment
terminates, has the power to perform acts necessary for protection, and shall account for and
deliver the estate assets to a successor or special personal representative upon the successor's
or special personal representative's appointment and qualification.
30.1-17-10. (3-610) Termination of appointment - Voluntary.
1. An appointment of a personal representative terminates as provided in section
30.1-21-03, one year after the filing of a closing statement.
2. An order closing an estate as provided in section 30.1-21-01 or 30.1-21-02 terminates
an appointment of a personal representative.
3. A personal representative may resign the position by filing a written statement of
resignation with the court after giving at least fifteen days' written notice to the persons
known to be interested in the estate. If no one applies or petitions for appointment of a
successor representative within the time indicated in the notice, the filed statement of
resignation is ineffective as a termination of appointment and in any event is effective
only upon the appointment and qualification of a successor representative and delivery
of the assets to the successor representative.
30.1-17-11. (3-611) Termination of appointment by removal - Cause - Procedure.
1. A person interested in the estate may petition for removal of a personal representative
for cause at any time. Upon filing of the petition, the court shall fix a time and place for
hearing. Notice shall be given by the petitioner to the personal representative, and to
other persons as the court may order. Except as otherwise ordered as provided in
section 30.1-17-07, after receipt of notice of removal proceedings, the personal
representative shall not act except to account, to correct maladministration or preserve
the estate. If removal is ordered, the court also shall direct by order the disposition of
the assets remaining in the name of, or under the control of, the personal
representative being removed.
2. Cause for removal exists when removal would be in the best interests of the estate, or
if it is shown that a personal representative or the person seeking the personal
representative's appointment intentionally misrepresented material facts in the
proceedings leading to the personal representative's appointment, or that the personal
representative has disregarded an order of the court, has become incapable of
discharging the duties of the office, or has mismanaged the estate or failed to perform
any duty pertaining to the office. Unless the decedent's will directs otherwise, a
personal representative appointed at the decedent's domicile, incident to securing
appointment of the personal representative or the personal representative's nominee
as ancillary personal representative, may obtain removal of another who was
appointed personal representative in this state to administer local assets.
30.1-17-12. (3-612) Termination of appointment - Change of testacy status.
Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the
appointment of a personal representative in intestacy or under a will which is superseded by
formal probate of another will, or the vacation of an informal probate of a will subsequent to the
appointment of the personal representative thereunder, does not terminate the appointment of
the personal representative although the personal representative's powers may be reduced as
provided in section 30.1-15-01. Termination occurs upon appointment in informal or formal
appointment proceedings of a person entitled to appointment under the later assumption
concerning testacy. If no request for new appointment is made within thirty days after expiration
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of time for appeal from the order in formal testacy proceedings, or from the informal probate,
changing the assumption concerning testacy, the previously appointed personal representative
upon request may be appointed personal representative under the subsequently probated will,
or as in intestacy, as the case may be.
30.1-17-13. (3-613) Successor personal representative.
Chapters 30.1-14 and 30.1-15 govern proceedings for appointment of a personal
representative to succeed one whose appointment has been terminated. After appointment and
qualification, a successor personal representative may be substituted in all actions and
proceedings to which the former personal representative was a party, and no notice, process, or
claim which was given or served upon the former personal representative need be given to or
served upon the successor in order to preserve any position or right the person giving the notice
or filing the claim may thereby have obtained or preserved with reference to the former personal
representative. Except as otherwise ordered by the court, the successor personal representative
has the powers and duties in respect to the continued administration which the former personal
representative would have had if the appointment had not been terminated.
30.1-17-14. (3-614) Special administrator - Appointment.
A special administrator may be appointed:
1. Informally by the court on the application of any interested person when necessary to
protect the estate of a decedent prior to the appointment of a general personal
representative or if a prior appointment has been terminated as provided in section
30.1-17-09.
2. In a formal proceeding by order of the court on the petition of any interested person
and finding, after notice and hearing, that appointment is necessary to preserve the
estate or to secure its proper administration, including its administration in
circumstances in which a general personal representative cannot or should not act. If it
appears to the court that an emergency exists, appointment may be ordered without
notice.
30.1-17-15. (3-615) Special administrator - Who may be appointed.
1. If a special administrator is to be appointed pending the probate of a will which is the
subject of a pending application or petition for probate, the person named executor in
the will shall be appointed if available and qualified.
2. In other cases, any proper person may be appointed special administrator.
30.1-17-16. (3-616) Special administrator - Appointed informally - Powers and duties.
A special administrator appointed by the court in informal proceedings pursuant to
subsection 1 of section 30.1-17-14 has the duty to collect and manage the assets of the estate,
to preserve them, to account therefor, and to deliver them to the general personal representative
upon the personal representative's qualification. The special administrator has the power of a
personal representative, under this title, necessary to perform the special administrator's duties.
30.1-17-17. (3-617) Special administrator - Formal proceedings - Power and duties.
A special administrator appointed by order of the court in any formal proceeding has the
power of a general personal representative, except as limited in the appointment, and duties as
prescribed in the order. The appointment may be for a specified time, to perform particular acts,
or on other terms as the court may direct.
30.1-17-18. (3-618) Termination of appointment - Special administrator.
The appointment of a special administrator terminates in accordance with the provisions of
the order of appointment or on the appointment of a general personal representative. In other
cases, the appointment of a special administrator is subject to termination as provided in
sections 30.1-17-08 through 30.1-17-11.
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