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mineral rights inheritance


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#1 mikejohn7125

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Posted 29 January 2012 - 08:30 AM

my father died eleven years ago in montana without a will. the deed to mineral rights in north dakota are still in his name. to my knowlage, they were never transferred to his estate. my mother died six years ago with no will. i am the only child of the union of my mother and father. i have three step siblings. these siblings are my mothers, and not my fathers children. do these mineral rights pass to me, or to my mothers estate, and then to me, or to me, and my step siblings? thanks alot

#2 Tax_Counsel

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Posted 29 January 2012 - 06:49 PM

You'll need to see a probate attorney in North Dakota, since North Dakota intestate succession law will apply to real estate owned by a decedent, even if the decedent was domiciled in another state. North Dakota statute provides the following for the intestate succession rules:

30.1-04-02. (2-102) Share of spouse.
The intestate share of a decedent's surviving spouse is:
1. The entire intestate estate if:
a. No descendant or parent of the decedent survives the decedent; or
b. All of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
2. The first three hundred thousand dollars, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
3. The first two hundred twenty-five thousand dollars, plus one-half of any balance of the intestate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent.
4. The first one hundred fifty thousand dollars, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
30.1-04-03. (2-103) Share of heirs other than surviving spouse.
Any part of the intestate estate not passing to a decedent's surviving spouse under section 30.1-04-02, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:
1. To the decedent's descendants by representation.
2. If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent.
3. If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation.
4. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:
a. Half to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and
b. Half to the decedent's maternal grandparents equally if both survive, or to the surviving maternal grandparent, or to the descendants of the decedent's maternalgrandparents or either of them if both are deceased, the descendants taking by representation.
5. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent's relatives on the side with one or more surviving members in the manner as described in subsection 4.
6. If there is no surviving spouse, descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent, but the intestate decedent has one deceased spouse who has one or more descendants who survive the decedent, to those descendants by representation or has more than one deceased spouse who has one or more descendants who survive the decedent, the estate is divided into as many equal shares as there are deceased spouses, each share passing to those descendants by representation.
It therefore appears that when your father died, leaving his wife and you as his sole child, ND law would give his wife the first $225,000 plus one-half of the estate over $225,000. As his only child, you would receive the rest. So, unless the mineral rights were particularly valuable, all the rights may have passed to your mother. When your mother then died without a will, leaving 4 children, the rights she had would be divided among you equally (assuming she had no children that died before she died).

You very likely will have to open up ancillary probate proceedings in North Dakota in order to properly transfer the rights.

You should consult a North Dakota probate attorney, not only to help with the probate but also because there may be important case law that will affect intestate succession when the decedent was domiciled in another state.

At worst, it would appear that you'd get 25% of the rights when all is done. Perhaps you might end up with more depending on the value of the rights and how the courts of North Dakota interpret these provisions for decedents domiciled outside the state. It is because of problems like this that folks ought to have good estate plans in place. Even a simple will could have avoided a result that your father might not have wanted.





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