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Thursday, June 14, 2012

Probate

This is a "cut and paste" from another post. It is not well articulated, but I think it gets the message across.
Do whatever it takes to get your property to whom you want it to go before you die. If at all possible, don't let anything go through probate. Probate will tie things up for quite some time but that's a minor problem compared to the bigger problem. Having done title searches I can tell you it will take hundreds of hours to sort out who owns what minerals, and for lawyers those are billable hours. After three generations of North Dakotans, oil rights have been spread out among thousands, and the proportions have grown smaller and smaller. In many cases, one can almost guarantee that any potential for mineral rights will be lost in probate. You might as well assume most of your oil money will be lost in probate if you area a small player. Many would recommend a family trust. 
It is in the best interests of lawyers to have you put everything into a will. In fact, anything in a will is probated, to the best of my knowledge. And that's why lawyers tell you to make sure you have a will. You do not want your property to go through probate. One can find a way to transfer property to heirs without going through probate in almost every case. Most interesting is this: there is a way to have one's equities go to your designated heirs without going through probate.

I have not read much of the article at this link; I am not connected to that site in any manner, no hidden agenda.

I am not a lawyer; I have no legal training. This is simply my 2-cents worth of idle chatter among friends.

Note: based on the first comment below, some folks may have misconstrued what I wrote. Let me be clear: everyone should have a will. A will goes through probate.  A lawyer can help arrange for property to be passed on to heirs without going through probate. Financial advisers can also help arrange for property to be passed on to heirs without going through probate. Based on all I know about minerals, I would prefer minerals not go through probate.

8 comments:

  1. As an attorney practicing in the Bakken, I would recommend your readers actually consult an attorney on these matters, rather than taking legal advice from a blog. Things are rarely as cut and dry as this. Regardless of whether you have a Will or not, if you die with minerals, a probate will be required. I do not think it is self serving when your attorney tells you to get a Will, unless you do not care what happens to your estate.

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    1. I agree completely. Everyone should have a will.

      Do not take advice from a blog.

      If you die with minerals in your name, they will go through probate.

      Having done title searches, small positions will be whittled away by costs associated with title searches.

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    2. I am going to do what my father did, deed the land (with all minerals included) to us children when he turned 60 with each of us getting 320 acres with 100% of minerals. It kept the value of the inheritance under a tax threshold and kept the gift from any future creditors if his health should fail after a certain number of years. He is now 90 and still lives off of the surface income and the big potential is still where he wanted it to go. The land whis is made up of origional homesteads and is located where the Bakken pinches out but well within the Three Forks in Hettinger County.

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    3. You obviously had a very smart dad. Count your blessings. And good luck with your minerals.

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  2. Bruce that is good advice as not everyone may know that. My families attorney set up a life estate for them back in the 80's during the first oil boom and there was no probate when they passed. My parents have now done the same. It doesn't even cost much for an attorney to draw up the papers. Thanks for the blog, my day wouldn't be complete with out it!

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    1. Thank you for your kind comments. I am not quite there, but I am gradually setting everything up so that none of my property will be probated when I die.

      The most difficult decision point will be to determine when I feel I need to turn over financial decisions to my executor (before I die and still in good mental health). But that's a whole different issue.

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  3. The advice is fundamentally wrong. IN ND, probate is not a huge problem. The alternatives can be.

    The assumption that a lawyer is giving bad self serving advice is bigotry.

    anon 1

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