Skip to main content
North Dakota Estate Planning Basics
Pillar GuideNorth Dakota22 min read

North Dakota Estate Planning Basics

North Dakota estate planning uses four documents: a will, a power of attorney with durability words, a health care directive, and an optional trust.

By Settled Editorial

North Dakota estate planning comes down to four documents. A will says who inherits and who raises your children. A durable power of attorney covers your money while you are alive but unable to act. A health care directive names someone to make medical decisions and records what you want. A revocable living trust is optional and sits on top of the rest.

Two North Dakota rules surprise people who read national checklists. A will can be notarized instead of witnessed, and a power of attorney is not durable unless it says so in the right words. Both are easy to get right once you know them.

North Dakota spreads this law across four places in the North Dakota Century Code. Wills and powers of attorney sit in Title 30.1, the state's version of the Uniform Probate Code. The health care directive has its own chapter, 23-06.5. Trusts sit in the North Dakota Uniform Trust Code, chapters 59-09 through 59-19. And since August 1, 2025, chapter 59-22 lets you sign most of these documents electronically. Every section quoted below was read in the chapter PDFs the North Dakota Legislative Council publishes at ndlegis.gov on September 28, 2026. The Council states that its code reflects all changes the 69th Legislative Assembly approved in 2025.

This guide is the map. Each section states the North Dakota signing rule, then points at the deeper guide.

The Four Documents At A Glance

DocumentWhat it controlsWhen it worksNorth Dakota signing rule
WillWho inherits probate property, who serves as personal representative, who becomes guardian of minor childrenAfter deathWriting, your signature, and either two witnesses or a notary acknowledgment, or a handwritten will (30.1-08-02)
Durable power of attorneyMoney, accounts, real estate, billsWhile you are aliveMust contain durability words to survive your incapacity (30.1-30-01); no statutory witness or notary rule
Health care directiveA health care agent and your treatment instructionsWhile you are alive and lack capacityDated writing, verified by a notary or two adult witnesses with listed disqualifications (23-06.5-05)
Revocable living trustOnly the assets you retitle into itWhile alive and after deathRevocable unless the terms expressly say it is irrevocable (59-14-02)

1. A North Dakota Will

Who can sign one. NDCC 30.1-08-01 is one sentence: any adult who is of sound mind may make a will. NDCC 14-10-02 makes every person 18 or older an adult.

How you sign it. NDCC 30.1-08-02(1) asks for three things. The will is in writing. You sign it, or someone else signs your name in your conscious presence and at your direction. Then you pick one of two routes:

  • Two witnesses. At least two individuals sign, each within a reasonable time after witnessing your signing or your acknowledgment of the signature or of the will.
  • A notary. You acknowledge the will before a notary public or another individual authorized to take acknowledgments. No witnesses are needed on this route.

The notary route is a North Dakota feature that most national form sites leave out.

Handwritten wills count. Under 30.1-08-02(2), a will that fails both routes is still valid as a holographic will, whether or not witnessed, if the signature and the material portions are in your handwriting. Section 30.1-08-03, which the code's section table still lists as "Holographic will," is only a repeal note from 1993. The live rule is 30.1-08-02(2).

There is no rescue for a botched signing. North Dakota never adopted the Uniform Probate Code's harmless-error section, so no statute lets a court save a document that missed the formalities. Sign it properly the first time.

Make it self-proved if you use witnesses. NDCC 30.1-08-04 lets a will "executed with attesting witnesses" be made self-proved by your acknowledgment and your witnesses' affidavits before an officer authorized to administer oaths, at signing or any time later. The section prints both forms. A self-proving affidavit spares your family from tracking down a witness after your death.

Electronic wills are allowed. The Uniform Electronic Wills Act, chapter 30.1-37, arrived in 2021. NDCC 30.1-37-04 mirrors the paper rule: a record readable as text, your signature, and either two witnesses or a notary acknowledgment.

Keep it where someone can find it. Under NDCC 30.1-11-01, you or your agent may deposit a sealed will with a county recorder for safekeeping. After your death the recorder notifies the person you designated and delivers the will to the court on an interested person's written request.

The full picture, including who may witness and how a will is revoked, is in a valid North Dakota will.

2. A Durable Power Of Attorney

This document names an agent, called an attorney in fact, to handle money and property while you are alive. North Dakota never adopted the Uniform Power of Attorney Act. Its law is the short Uniform Durable Power of Attorney Act at chapter 30.1-30, backed by the agency chapters of Title 3, and three rules decide most of what matters.

Durability is opt-in. NDCC 30.1-30-01 defines a durable power of attorney as a writing that contains the words "This power of attorney is not affected by subsequent disability or incapacity of the principal or by lapse of time," or "This power of attorney becomes effective upon the disability or incapacity of the principal," or similar words showing that intent. The second phrase creates a springing power that starts at incapacity. Leave out every such phrase and NDCC 3-01-11(2)(c) ends the agency, as to anyone with notice, on your "incapacity of the principal to contract." That is the day your family reaches for the document.

A broad grant allows unlimited gifts. NDCC 30.1-30-06 says that when a power of attorney lets the agent do any act you could do, or shows you meant to give full power over your affairs, the agent may make gifts in any amount of your property to any individual or qualifying charity. If you want a cap, write it into the document in express words.

It can name your future conservator or guardian. NDCC 30.1-30-03(2) lets you nominate a conservator, guardian of your estate, or guardian of your person in a durable power of attorney. The court follows your most recent nomination except for good cause or disqualification.

Chapter 30.1-30 sets no witness or notary requirement. Sign before a notary anyway. NDCC 47-19-03 requires an acknowledgment before an instrument can be recorded, which matters the day your agent signs a deed, and banks look for one.

Two boundaries are worth memorizing. This document covers money, and the health care directive covers medicine. And it ends when you die, at which point a personal representative appointed through the district court takes over. See North Dakota power of attorney for revocation, divorce and agent-misuse rules.

3. A Health Care Directive

North Dakota uses one instrument for medical decisions, the health care directive, and it can carry two things at once: instructions to your doctors and a power of attorney naming a health care agent.

What it can do. Under NDCC 23-06.5-03(1), a directive may hold health care instructions and may appoint an agent who can make any health care decision you could make, subject to limits you write in. Under subsection (3), as amended by 2025 Senate Bill 2297, it takes effect only when your attending physician, psychiatrist or psychologist certifies in writing that you lack capacity and files that finding in your medical record. Subsection (4) lets you authorize your agent to act even while you still have capacity.

How you sign it. NDCC 23-06.5-05 requires a writing that is dated, states your name, carries your signature, and includes an instruction, an agent appointment, or both. A notary public or at least two witnesses aged 18 or older must verify the signature. Here is where people slip:

  • At least one witness cannot be a health care or long-term care provider giving you direct care, or an employee of one.
  • Neither the notary nor any witness may be your agent, your spouse or heir, a relative by blood, marriage or adoption, anyone who would take part of your estate, a creditor, the person directly paying for your medical care, or your attending physician.

A notary who works for your care provider is allowed. A witness who is your adult child is not.

Who cannot serve as your agent. NDCC 23-06.5-04 bars your health care provider, your long-term care provider, and nonrelative employees of either while they serve in that role.

If you sign nothing. NDCC 23-12-13(2) sets the order of people who may consent to treatment for an incapacitated adult: your health care agent, then a court-appointed guardian, then your spouse, an adult child, a parent, an adult sibling, a grandparent, an adult grandchild, and a close relative or friend. Everyone after the guardian must have stayed in close contact with you. The last class is an interdisciplinary team of at least three health care professionals. A directive lets you choose instead of a list. The deeper guide is North Dakota health care directive.

4. A Trust, When It Earns Its Place

A trust is an add-on, not a replacement. The Legislature enacted the North Dakota Uniform Trust Code in 2007 as chapters 59-09 through 59-19, and three rules tell you most of what you need before deciding.

What creates a trust. NDCC 59-12-02(1) requires a settlor with capacity, an intention to create the trust, a definite beneficiary or one of the listed exceptions, duties for the trustee, and different people as sole trustee and sole beneficiary.

Revocable is the default, with a date trap. NDCC 59-14-02(1) lets you revoke or amend a trust unless its terms expressly say it is irrevocable. That default does not apply to a trust created under an instrument signed before August 1, 2007, so an older family trust needs a closer read. Subsection (5) lets your agent under a power of attorney revoke or amend the trust only if the trust or the power expressly allows it.

A trust does not hide assets from creditors. NDCC 59-13-05(1) makes property of a trust that was revocable at death answerable for your creditors, the costs of administering your estate, funeral expenses and statutory allowances to a surviving spouse and children, to the extent the probate estate cannot cover them. The statute counts the homestead exemption in chapter 47-18 among those allowances.

A trust also controls only what you retitle into it. An unfunded trust changes nothing. Read a revocable living trust for the funding steps and how to avoid probate in North Dakota for the cheaper tools. If you want a pet cared for after you die, NDCC 59-12-08 allows a trust for an animal alive during your lifetime, covered in a trust for a pet.

Signing Electronically Since August 1, 2025

The Uniform Electronic Estate Planning Documents Act, chapter 59-22, came from 2025 Senate Bill 2127. NDCC 59-22-01(5) lists what it covers: trust instruments, a durable power of attorney under chapter 30.1-30, advance directives including a health care power of attorney, a nomination of a guardian for yourself or your minor child, and more. NDCC 59-22-06 says those documents and their signatures cannot be denied effect because they are electronic.

Two exclusions matter. The act does not cover a will, which follows the separate Electronic Wills Act above. And 59-22-01(5)(b) leaves out a deed of real property and a certificate of title for a motor vehicle, watercraft or aircraft, so a transfer on death deed still goes on paper at the recorder's office.

Naming Guardians For Minor Children

A will is where you say who raises your children. NDCC 30.1-27-02 lets the parent of a minor appoint by will a guardian of an unmarried minor.

Here is how that appointment behaves. It becomes effective when the guardian files an acceptance in the court where the will is probated, if by then both parents have died or the surviving parent's rights have been terminated by court order, and it remains effective once the court approves it. If both parents have died, the appointment by the parent who died later has priority. The guardian must give written notice of acceptance to the child and to the child's caregiver or nearest adult relative, and must file a criminal history record check within 45 days.

North Dakota sends the harder cases elsewhere. Under NDCC 30.1-27-05, an objection to your appointment belongs to the juvenile court, and so does almost every other court appointment of a guardian for a minor. So a will with a named guardian keeps the decision in your hands, and skipping it leaves the choice to a juvenile court petition. Both routes are covered in naming a guardian.

The House Often Moves Outside The Will

North Dakota lets you pass real property with a recorded deed instead of a court case. The transfer on death deed chapter, 30.1-32.1, dates from 2011. NDCC 30.1-32.1-06 requires the deed to carry the elements of a recordable deed, state that the transfer happens at your death, use the phrase "transfer on death deed" or "TOD" in its title, and be recorded before your death with the county recorder where the property sits.

That last requirement does the damage when it is missed. A deed signed and left in a drawer transfers nothing. Read the North Dakota transfer on death deed before you choose between a deed and a trust.

What North Dakota Decides If You Sign Nothing

Skipping the documents does not mean you have no plan. It means North Dakota's defaults apply.

  • Your property. The intestacy rules in chapter 30.1-04 pick your heirs by category and in fixed shares. See North Dakota intestate succession.
  • Your medical care. The priority list in 23-12-13(2) picks who consents.
  • Your money during incapacity. With no durable power of attorney, someone has to ask the district court to appoint a conservator, which means a petition, a hearing and ongoing reporting.
  • Your children. With no appointment in a will, a juvenile court chooses.
  • Your estate's manager. The court appoints a personal representative under the statutory priority list rather than the person you would have named. North Dakota executor duties covers that job, and the North Dakota probate guide walks through the case itself.

Plans Made Before A Divorce

A divorce changes more than you might expect. NDCC 30.1-10-04(2) revokes gifts to a former spouse and a former spouse's relatives in a governing instrument signed before the divorce, and revokes their nominations as personal representative, trustee, conservator, guardian or agent, unless the document, a court order or a property settlement says otherwise. A legal separation that leaves the marriage in place does not trigger it. Sign new documents after a divorce rather than relying on the statute to clean up the old ones.

North Dakota Collects No Estate Tax

The Office of State Tax Commissioner says no estate taxes are paid to North Dakota for deaths after January 1, 2005. North Dakota has no inheritance tax, which the Commissioner says was repealed in 1927, and no gift tax.

One wrinkle: the estate tax chapter, 57-37.1, was never repealed. Its tax equals the old federal credit for state death taxes under NDCC 57-37.1-04, and that credit is gone, so nothing is due. But NDCC 57-37.1-21 still calls for a North Dakota return from any estate that must file a federal estate tax return and holds North Dakota property, and the Commissioner asks for Form 54-91 in that case. The federal estate tax reaches only very large estates. See the federal estate tax for the current figures.

A Small Estate Is Still Worth Planning

A modest estate may skip probate entirely. North Dakota's small estate affidavit reaches personal property when the whole estate is worth $100,000 or less, a figure that took effect August 1, 2025. See the North Dakota small estate affidavit. Even then, your power of attorney and health care directive do their work while you are alive, which no probate shortcut can replace.

Where To Start

Next steps, in the order most people need them:

  1. Sign a health care directive. It costs the least and covers the most likely emergency.
  2. Sign a durable power of attorney, with the durability words. Check the draft for the 30.1-30-01 phrase before you sign.
  3. Sign a will, with two witnesses or before a notary, and name a guardian if you have minor children.
  4. Review beneficiary designations on retirement accounts, life insurance and bank accounts, which pass outside the will.
  5. Decide on a transfer on death deed or a trust if you own real estate.
  6. Store the originals where your agent and your personal representative can find them, or deposit the will with the county recorder.

When To Bring In A North Dakota Attorney

The statutes above are short, but the documents decide who controls your money, your medical care and your property. Talk to a licensed North Dakota attorney if you own land in more than one state, have a child with a disability, run a farm or business, expect a family dispute, or want a trust. An attorney also catches the durability words and witness conflicts that form documents miss.

Frequently Asked Questions

What documents does a North Dakota estate plan need?

Four, and the fourth is optional. A will decides who inherits your probate property, who serves as personal representative, and who you appoint as guardian of your minor children. A durable power of attorney under NDCC chapter 30.1-30 covers your money if you cannot act. A health care directive under NDCC chapter 23-06.5 names a health care agent and records your treatment wishes. A revocable living trust under the North Dakota Uniform Trust Code, chapters 59-09 through 59-19, sits on top of those when your situation calls for it.

Does a North Dakota will need witnesses or a notary?

One or the other. NDCC 30.1-08-02 requires a will in writing, signed by you or by someone else in your name in your conscious presence and at your direction, and then either signed by at least two witnesses or acknowledged by you before a notary public. A will whose signature and material portions are in your handwriting is valid as a holographic will whether or not anyone witnessed it.

Is a North Dakota power of attorney durable automatically?

No. NDCC 30.1-30-01 makes a power of attorney durable only when the writing contains words such as "This power of attorney is not affected by subsequent disability or incapacity of the principal or by lapse of time," or similar words. Without them, NDCC 3-01-11(2)(c) ends the agency, as to anyone with notice, when you become incapable of contracting, which is the moment your family needs it.

How do I sign a North Dakota health care directive?

NDCC 23-06.5-05 requires a dated writing that states your name, carries your signature, and is verified by a notary public or by at least two witnesses who are 18 or older. At least one witness cannot be a direct-care provider or its employee. Neither the notary nor any witness can be your agent, spouse, heir, relative, a beneficiary of your estate, a creditor, the person financially responsible for your care, or your attending physician.

Do I need a living trust in North Dakota?

Not usually, and a trust does not replace the other documents. Under NDCC 59-14-02(1), a trust created under an instrument signed on or after August 1, 2007 is revocable unless its terms expressly say it is irrevocable, and it controls only the assets you retitle into it. NDCC 59-13-05(1) also makes property of a trust that was revocable at death answerable for your creditors, estate costs, funeral expenses and statutory allowances when the probate estate falls short.

Does North Dakota charge an estate tax or an inheritance tax?

No tax is due. The Office of State Tax Commissioner says no estate taxes are paid to North Dakota for deaths after January 1, 2005, that North Dakota has no inheritance tax, and that it has no gift tax. Chapter 57-37.1 is still on the books, and the Commissioner asks for Form 54-91 from any estate that must file a federal estate tax return.

Who makes my medical decisions in North Dakota if I sign nothing?

NDCC 23-12-13(2) sets the order for an incapacitated adult: a health care agent, then a court-appointed guardian, then a spouse, adult children, parents, adult siblings, grandparents, adult grandchildren, and a close relative or friend, each of whom must have stayed in close contact with you. The last class is an interdisciplinary team of at least three health care professionals.

Related North Dakota Guides

This guide is general information about North Dakota estate planning documents. Confirm anything that affects your own situation with a licensed North Dakota attorney before you sign, because these documents decide who controls your money, your medical care and your property.

Sources:

It is not legal advice.

Prefer to talk it through? Get a free local attorney match (no obligation).

Settled Estate is not a law firm and does not give legal advice.

Not sure which documents you need?

The free estate planning assessment builds a short document list for your situation.

Take the free estate planning assessment

Information current as of September 28, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in North Dakota can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

All North Dakota guides← Back to all articles

More North Dakota Resources

Explore the rest of the North Dakota estate planning hub.

The core documents5 pages
Trusts and avoiding probate4 pages
Tools1 page