For Attorneys & CPAs · State-Specific Guides
By Brad Caponigro · Founder, Pointer Petroleum LLC · Reservoir engineer
Published · Updated
North Dakota probate is governed by Title 30.1 of the North Dakota Century Code, which adopts the Uniform Probate Code with state-specific modifications. Probate is filed in the district court of the county of the decedent’s domicile.
Three tracks are in routine use:
1. Informal probate (NDCC § 30.1-14 et seq.) — the typical vehicle. The personal representative files an application with the clerk of district court and, after a short waiting period, receives letters testamentary or of administration without a court hearing. Informal administration is then handled out of court, with statutory notice to interested parties and creditors.
2. Formal probate (NDCC § 30.1-15 et seq.) — used when the will is contested, heirship is disputed, or when bond or supervised administration is appropriate. Slower and more expensive, but provides judicial determination of contested issues.
3. Small-estate collection by affidavit (NDCC § 30.1-23-01) — reaches personal property only when the gross value of the entire estate (less liens and encumbrances) does not exceed $50,000. It does not clear mineral title, which is real property.
For mineral interests of any meaningful value, informal probate followed by recording of a deed of distribution in each situs county is the practical workflow. The personal representative’s deed of distribution is the document operators and county recorders rely on to update title.
Five counties account for the overwhelming majority of contemporary ND mineral-probate volume:
— Williams County (Williston, the basin namesake; Bakken core).
— McKenzie County (Watford City; the most prolific producing county in the state).
— Mountrail County (Stanley; eastern Bakken core).
— Dunn County (southern Bakken; mixed-fairway development).
— Divide County (Crosby; northern fringe with continued development).
Burke, Bottineau, Renville, Ward, Stark, Bowman, and Slope counties see secondary activity. The principal Bakken operators — Continental Resources, Chord Energy (post-Whiting/Oasis merger), Hess, Marathon (now ConocoPhillips after 2024 acquisition), and Enerplus — each operate large multi-county footprints with developed land departments. Document packages (certified letters, recorded deed of distribution, W-9, division order) are typically processed in 30–60 days for complete submissions.
A distinctive ND feature: the Bakken horizontal-development era began in earnest around 2008, which means the first generation of inherited Bakken royalty interests is only now (2020s–2030s) cycling through estate proceedings as the original lessors of record pass. Many ND inherited interests are in the relatively short post-severance chain compared to Appalachian (PA/OH/WV) interests with 19th-century severances.
North Dakota’s Dormant Mineral Act is codified at NDCC § 38-18.1. The statute provides that a severed mineral interest "lapses" — reverting to the surface owner of record — if no qualifying "use" has occurred during the prior 20 years and the surface owner properly serves a Notice of Lapse and records an affidavit of publication.
Qualifying uses under § 38-18.1-03 include:
— Production of minerals from the interest.
— Operations for production (drilling, reworking, completion) on the interest or a unit including it.
— The interest being subject to a recorded oil and gas lease.
— Recording of a Statement of Claim of Mineral Interest under § 38-18.1-04 within the prior 20 years.
— Mineral taxation on the interest.
— A title transaction involving the interest filed of record.
For estate practice, the consequence is meaningful. A decedent’s mineral interest that has been entirely passive for 20+ years — no lease, no production, no recorded title transaction — is at lapse risk. Once the surface owner serves the Notice of Lapse (with the required publication and affidavit), the mineral owner has 60 days from the notice to file a recorded Statement of Claim under § 38-18.1-04 to preserve the interest.
At intake on a ND mineral-asset estate: confirm whether any surface owner has served Notice of Lapse on any of the decedent’s mineral interests; pull the recent leasing/production history; for any interest with no qualifying use in the prior 20 years, prepare and record a Statement of Claim immediately to reset the 20-year clock. Filing a Statement of Claim is inexpensive and can be done before or alongside probate proceedings.
North Dakota does not impose a state estate tax or inheritance tax. The state estate tax was repealed effective for deaths after January 1, 2005.
For mineral-asset estates, the consequences:
— Federal estate tax applies if the gross estate exceeds the federal exclusion ($13.99M per decedent for 2025; the 2025 indexed amount — confirm the current-year figure on the IRS Rev. Proc. release).
— No North Dakota estate-tax filing is required at any value.
— The mineral appraisal supporting the federal Form 706 is the only valuation document required for tax purposes.
For non-ND-domiciled decedents who owned ND mineral interests, no ND estate-tax filing is required (because ND has no estate tax), but ancillary administration is still required for title purposes — the home-state letters do not bind ND real property. Ancillary informal probate in the situs county is typically straightforward.
Note on ongoing tax: ND levies a 5% oil extraction tax and a 5% gross production tax on oil (combined 10%), and a gross production tax on gas, allocated to the operator and reflected on the royalty owner’s pay stub as a deduction from gross. These are operational severance taxes — not estate-tax items — but practitioners should expect to see them in pre-DoD royalty history when reconstructing income for the federal Form 706 valuation.
Ancillary ND administration for a non-domiciliary decedent uses the same informal-probate machinery as a domiciliary case. The personal representative appointed in the home state files an application for ancillary appointment in the situs county district court, attaches authenticated copies of the home-state letters and the will (if any), and receives ancillary letters.
A few practical notes:
— Bond is rarely required when an out-of-state corporate fiduciary or an attorney-fiduciary is appointed in ancillary capacity, but verify with the specific district court.
— The deed of distribution must be recorded in every ND situs county; minerals in three counties = three recordings.
— Operators in the major Bakken counties have well-established protocols for processing ancillary deeds; the package they request is the same as for a domiciliary probate (certified letters, recorded deed, W-9, division order).
— If the decedent’s ND minerals are entirely within unleased acreage in an inactive area, the cost of opening even an informal ancillary case may exceed the value at risk; in those cases, leaving royalties in suspense until accumulated value justifies the curative cost is a defensible documented choice.
Common curative tasks alongside probate:
— Recording of the deed of distribution in every situs county.
— Statement of Claim filings under § 38-18.1-04 to reset Dormant Mineral Act clocks.
— Affidavits of identity to clear name discrepancies in the chain.
— Coordination with operators for release of suspense royalty post-recording.
Five issues recur on ND mineral-estate work:
1. Missing the Dormant Mineral Act exposure. A dormant inherited interest may be subject to abandonment by the surface owner if no qualifying use has occurred in 20 years. Filing a Statement of Claim under § 38-18.1-04 at probate intake (or earlier) is the preventive action.
2. Trying to use the small-estate affidavit for mineral title. NDCC § 30.1-23-01 reaches personal property only and does not clear mineral title. Informal probate (or formal probate where contested) is required for any meaningful mineral interest.
3. Failing to record the deed of distribution in every situs county. ND recording is per-county; a Bakken estate with interests in Williams, McKenzie, and Mountrail requires three recordings.
4. Underestimating Bakken pre-DoD income for federal Form 706 valuation. A modest Bakken royalty interest can generate six-figure annual income at peak production; the appraiser working from a single year of pre-DoD royalty history may understate or overstate decline-curve realities. Provide the appraiser with three to five years of stub data when available.
5. Failing to coordinate with operators on suspense royalty. ND operators routinely hold royalty in suspense pending updated payee documentation. The personal representative should request a suspense-balance confirmation from each operator at intake; back-payments to heirs after probate completion are common and can be material.
Yes — affidavits of heirship are accepted for mineral title purposes under NDCC § 30.1-21. Operators in the Bakken-era counties have substantial experience with affidavits because so many inherited interests trace through multiple generations of out-of-state heirs. Properly prepared affidavits supported by death certificates and other documentation are routinely accepted, though title examiners scrutinize them carefully.
Yes for title purposes. The TX letters do not bind ND real property; ND ancillary administration must be opened in the situs county district court to issue letters and clear title. No ND estate-tax filing is required (ND has no estate tax), so the ancillary case is purely a title-clearing exercise. Informal ancillary probate is straightforward and typically resolves in a few months.
Under NDCC § 38-18.1, a severed mineral interest lapses to the surface owner if no qualifying use (production, lease, recorded title transaction, recorded Statement of Claim, mineral tax payment, etc.) has occurred during the prior 20 years and the surface owner properly serves Notice of Lapse and records an affidavit of publication. The mineral owner can preserve the interest by recording a Statement of Claim under § 38-18.1-04 within 60 days of the Notice. At probate intake, file a Statement of Claim immediately if the chain is dormant.
No. North Dakota repealed its state estate tax effective for deaths after January 1, 2005. There is no current ND estate tax or inheritance tax. Federal estate tax applies if the gross estate exceeds the federal exclusion; no separate ND filing is required at any value.
No. The small-estate procedure reaches personal property only and is capped at $50,000 gross value (less liens and encumbrances). It does not clear mineral title, which is real property under ND law. Informal probate followed by recording of the personal representative’s deed of distribution in each situs county is the standard workflow for any mineral-asset estate.
Primary sources used in writing this article. These are not legal or tax advice — they are the public statutes, regulations, and authoritative materials the article draws from. Consult a qualified attorney or CPA before acting on any of them.
Mississippi mineral interests — Tuscaloosa Marine Shale royalties along the southwestern fairway, legacy Mississippi Salt Basin oil and gas across the south, and shallow conventional production scattered statewide — pass through estate proceedings under the Mississippi Code (Title 91) in the chancery courts. The defining institutional feature of Mississippi mineral practice is the chancery-court system itself: equity-rooted, county-based, and procedurally distinct from the common-law probate courts found in most other states.
Arkansas mineral interests — dormant Fayetteville Shale royalties across the Arkoma fairway, legacy Smackover oil and brine in the south, and the contemporary lithium-extraction pivot in the Smackover — pass through probate under Title 28 of the Arkansas Code Annotated. The defining feature of Arkansas mineral practice is the gap between the play’s 2008–2016 Fayetteville heyday and its current low-activity baseline, which routinely surfaces unaddressed succession gaps in inherited interests.
Montana mineral interests — eastern Bakken/Three Forks royalties in Richland, Roosevelt, Sheridan, and McCone counties, plus Powder River play interests in Big Horn and Rosebud — pass through probate under Title 72 of the Montana Code Annotated, which adopts the Uniform Probate Code. Federal and Crow/Northern Cheyenne tribal acreage overlays recur in the southeastern counties and route portions of the curative path through BLM and BIA rather than purely state procedure.
West Virginia mineral interests — dominantly Marcellus and Utica royalties in the northern panhandle and north-central counties — pass through estate proceedings under Chapters 41 (wills) and 44 (decedents’ estates) of the West Virginia Code. The defining feature of WV mineral practice is the layered nineteenth-century severance history: an estimated 1.3 million distinct mineral interests, many traceable to severances recorded in the 1880s–1910s, generate disproportionate curative volume per estate.