# Title 30.1 — Uniform Probate Code

## Chapter 30.1-20 — Special Provisions Relating to Distribution

### § 30.1-20-01. (3-901) Successors' rights if no administration.

In the absence of administration, the heirs and devisees are entitled to the estate in
accordance with the terms of a probated will or the laws of intestate succession. Devisees may
establish title to devised property by the probated will. Persons entitled to property by
homestead allowance, exemption, or intestacy may establish title thereto by proof of the
decedent's ownership, the decedent's death, and their relationship to the decedent. Successors
take subject to all charges incident to administration, including the claims of creditors and
allowances of surviving spouse and dependent children, and subject to the rights of others
resulting from abatement, retainer, advancement, and ademption.
### § 30.1-20-02. (3-902) Distribution - Order in which assets appropriated - Abatement.

1. Except as provided in subsection 2 and except as provided in connection with the
share of the surviving spouse who elects to take an elective share, shares of
distributees abate, without any preference or priority as between real and personal
property, in the following order:
a. Property not disposed of by the will.
b. Residuary devises.
c. General devises.
d. Specific devises.
For purposes of abatement, a general devise charged on any specific property or fund
is a specific devise to the extent of the value of the property on which it is charged,
and upon the failure or insufficiency of the property on which it is charged, a general
devise to the extent of the failure or insufficiency. Abatement within each classification
is in proportion to the amounts of property each of the beneficiaries would have
received if full distribution of the property had been made in accordance with the terms
of the will.
2. If the will expresses an order of abatement, or if the testamentary plan or the express
or implied purpose of the devise would be defeated by the order of abatement stated
in subsection 1, the shares of the distributees abate as may be found necessary to
give effect to the intention of the testator.
3. If the subject of a preferred devise is sold or used incident to administration,
abatement shall be achieved by appropriate adjustments in, or contribution from, other
interests in the remaining assets.
### § 30.1-20-03. (3-903) Right of retainer.

The amount of a noncontingent indebtedness of a successor to the estate if due, or its
present value if not due, shall be offset against the successor's interest. But, the successor has
the benefit of any defense which would be available to the successor in a direct proceeding for
recovery of the debt.
### § 30.1-20-04. (3-904) Interest on general pecuniary devise.

General pecuniary devises bear interest at the legal rate beginning one year after the first
appointment of a personal representative until payment, unless a contrary intent is indicated by
the will.
### § 30.1-20-05. (2-517, 3-905) Penalty clause for contest.

A provision in a will purporting to penalize an interested person for contesting the will or
instituting other proceedings relating to the estate is unenforceable if probable cause exists for
instituting proceedings.

### § 30.1-20-06. (3-906) Distribution in kind - Valuation - Method.

1. Unless a contrary intention is indicated by the will, the distributable assets of a
decedent's estate shall be distributed in kind to the extent possible through application
of the following provisions:
a. A specific devisee is entitled to distribution of the thing devised, and a spouse or
child who has selected particular assets of an estate as provided in section
b. Any homestead or family allowance or devise payable in money may be satisfied
by value in kind provided:
(1) The person entitled to the payment has not demanded payment in cash.
(2) The property distributed in kind is valued at fair market value as of the date
of its distribution.
(3) No residuary devisee has requested that the asset in question remain a part
of the residue of the estate.
c. For the purpose of valuation under subdivision b, securities regularly traded on
recognized exchanges, if distributed in kind, are valued at the price for the last
sale of like securities traded on the business day prior to distribution, or if there
was no sale on that day, at the median between amounts bid and offered at the
close of that day. Assets consisting of sums owed the decedent or the estate by
solvent debtors as to which there is no known dispute or defense are valued at
the sum due with accrued interest or discounted to the date of distribution. For
assets which do not have readily ascertainable values, a valuation as of a date
not more than thirty days prior to the date of distribution, if otherwise reasonable,
controls. For purposes of facilitating distribution, the personal representative may
ascertain the value of the assets as of the time of the proposed distribution in any
reasonable way, including the employment of qualified appraisers, even if the
assets may have been previously appraised.
d. The residuary estate must be distributed in any equitable manner.
2. After the probable charges against the estate are known, the personal representative
may mail or deliver a proposal for distribution to all persons who have a right to object
to the proposed distribution. The right of any distributee to object to the proposed
distribution on the basis of the kind or value of asset the distributee is to receive, if not
waived earlier in writing, terminates if the distributee fails to object in writing received
by the personal representative within thirty days after mailing or delivery of the
proposal.
### § 30.1-20-07. (3-907) Distribution in kind - Evidence.

If distribution in kind is made, the personal representative shall execute an instrument or
deed of distribution assigning, transferring, or releasing the assets to the distributee as evidence
of the distributee's title to the property.
### § 30.1-20-07.1. Deed of distribution - Error in description.

If a deed of distribution contains an error in its description of the property distributed or its
ownership, the distributee may petition a court of proper jurisdiction to issue an ex parte order
allowing an amendment of the deed of distribution to correct the error.
### § 30.1-20-08. (3-908) Distribution - Right or title of distributee.

Proof that a distributee has received an instrument or deed of distribution of assets in kind,
or payment in distribution, from a personal representative, is conclusive evidence that the
distributee has succeeded to the interest of the estate in the distributed assets, as against all
persons interested in the estate, except that the personal representative may recover the assets
or their value if the distribution was improper.

### § 30.1-20-09. (3-909) Improper distribution - Liability of distributee.

Unless the distribution or payment no longer can be questioned because of adjudication,
estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who
was improperly paid, is liable to return the property improperly received and its income since
distribution if the distributee or claimant has the property. If the distributee or claimant does not
have the property, then the distributee or claimant is liable to return the value as of the date of
disposition of the property improperly received and its income and gain received by the
distributee or claimant.
### § 30.1-20-10. (3-910) Purchasers from distributees protected.

If property distributed in kind or a security interest therein is acquired for value by a
purchaser from or lender to a distributee who has received an instrument or deed of distribution
from the personal representative, or is so acquired by a purchaser from or lender to a transferee
of the distributee, the purchaser or lender takes title free of any right of an interested person in
the estate and incurs no personal liability to the estate, or to any interested person, whether or
not the distribution was proper or supported by court order or the authority of the personal
representative was terminated before execution of the instrument or deed. This section protects
a purchaser from or lender to a distributee who, as personal representative, has executed a
deed of distribution to the personal representative, and a purchaser from or lender to any other
distributee or the distributee's transferee. To be protected under this provision, a purchaser or
lender need not inquire whether a personal representative acted properly in making the
distribution in kind, even if the personal representative and the distributee are the same person,
or whether the authority of the personal representative had terminated before the distribution.
### § 30.1-20-11. (3-911) Partition for purpose of distribution.

When two or more heirs or devisees are entitled to distribution of undivided interests in any
real or personal property of the estate, the personal representative or one or more of the heirs
or devisees may petition the district court prior to the formal or informal closing of the estate, to
make partition. After notice to the interested heirs or devisees, the district court shall partition
the property in the same manner as provided by chapter 32-16. The district court may direct the
personal representative to sell any property which cannot be partitioned without prejudice to the
owners and which cannot conveniently be allotted to any one party, except if a buyout is agreed
upon pursuant to section 32-16-49.
### § 30.1-20-12. (3-912) Private agreements among successors to decedent binding on

personal representative.
Subject to the rights of creditors and taxing authorities, competent successors may agree
among themselves to alter the interests, shares, or amounts to which they are entitled under the
will of the decedent, or under the laws of intestacy, in any way that they provide in a written
contract executed by all who are affected by its provisions. The personal representative shall
abide by the terms of the agreement subject to the personal representative's obligation to
administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and
to carry out the responsibilities of the personal representative's office for the benefit of any
successors of the decedent who are not parties. Personal representatives of decedents' estates
are not required to see to the performance of trusts if the trustee thereof is another person who
is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the
purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of
trusts.
### § 30.1-20-13. (3-913) Distributions to trustee.

1. Before distributing to a trustee, the personal representative may require that the trust
be registered if the state in which it is to be administered provides for registration and
that the trustee inform the beneficiaries.
2. If the trust instrument does not excuse the trustee from giving bond, the personal
representative may petition the appropriate court to require that the trustee post bond

if the personal representative apprehends that distribution might jeopardize the
interests of persons who are not able to protect themselves, and the personal
representative may withhold distribution until the court has acted.
3. No inference of negligence on the part of the personal representative shall be drawn
from the personal representative's failure to exercise the authority conferred by
subsections 1 and 2.
### § 30.1-20-14. (3-914) Disposition of unclaimed assets.

If an heir, devisee, or claimant cannot be found, the personal representative shall distribute
the missing person's share to the missing person's conservator, if any, otherwise to the
unclaimed property administrator under chapter 47-30.2.
### § 30.1-20-15. (3-915) Distribution to person under disability.

1. A personal representative may discharge the personal representative's obligation to
distribute to any person under legal disability by distributing in a manner expressly
provided in the will.
2. Unless contrary to an express provision in the will, the personal representative may
discharge the personal representative's obligation to distribute to a minor or to a
person under other disability by distributing to the distributor's attorney in fact. If the
personal representative knows that a conservator has been appointed or that a
proceeding for appointment of a conservator is pending, the personal representative is
authorized to distribute only to the conservator.
3. If the heir or devisee is under disability other than minority, the personal representative
is authorized to distribute to any of the following:
a. An attorney in fact who has authority under a power of attorney to receive
property for that person.
b. The spouse, parent, or other close relative with whom the person under disability
resides, if the distribution is of an amount or value not exceeding ten thousand
dollars per year, unless the court authorizes a larger amount or greater value.
Persons receiving money or property for a disabled person are obligated to apply the
money or property to the support of that person, but may not pay themselves except
by way of reimbursement for out-of-pocket expenses for goods and services
necessary for the support of the disabled person. Excess sums must be preserved for
future support of the disabled person. The personal representative is not responsible
for the proper application of money or property distributed under this subsection.
### § 30.1-20-16. (3-916) Apportionment of estate taxes.

1. For purposes of this section:
a. "Estate" means the gross estate of a decedent as determined for the purpose of
federal estate tax and the estate tax payable to this state.
b. "Fiduciary" means personal representative or trustee.
c. "Person" means any individual, partnership, association, joint stock company,
corporation, limited liability company, government, political subdivision,
governmental agency, or local governmental agency.
d. "Person interested in the estate" means any person entitled to receive, or who
has received, from a decedent or by reason of the death of a decedent any
property or interest therein included in the decedent's estate. It includes a
personal representative, conservator, and trustee.
e. "State" means any state, territory, or possession of the United States, the District
of Columbia, and the Commonwealth of Puerto Rico.
f. "Tax" means the federal estate tax and the additional estate tax imposed by
chapter 57-37.1 and interest and penalties imposed in addition to the tax.
2. Unless the will otherwise provides, the tax shall be apportioned among all persons
interested in the estate. The apportionment is to be made in the proportion that the
value of the interest of each person interested in the estate bears to the total value of

the interests of all persons interested in the estate. The values used in determining the
tax are to be used for that purpose. If the decedent's will directs a method of
apportionment of tax different from the method described in this title, the method
described in the will controls.
3. a. The court in which venue lies for the administration of the estate of a decedent on
petition for the purpose may determine the apportionment of the tax.
b. If the court finds that it is inequitable to apportion interest and penalties in the
manner provided in subsection 2 because of special circumstances, it may direct
apportionment thereof in the manner it finds equitable.
c. If the court finds that the assessment of penalties and interest assessed in
relation to the tax is due to delay caused by the negligence of the fiduciary, the
court may charge the fiduciary with the amount of the assessed penalties and
interest.
d. In any action to recover, from any person interested in the estate, the amount of
the tax apportioned to the person in accordance with this title, the determination
of the court in respect thereto shall be prima facie correct.
4. a. The personal representative or other person in possession of the property of the
decedent required to pay the tax may withhold from any property distributable to
any person interested in the estate, upon its distribution to the person, the
amount of tax attributable to the person's interest. If the property in possession of
the personal representative or other person required to pay the tax and
distributable to any person interested in the estate is insufficient to satisfy the
proportionate amount of the tax determined to be due from the person, the
personal representative or other person required to pay the tax may recover the
deficiency from the person interested in the estate. If the property is not in the
possession of the personal representative or the other person required to pay the
tax, the personal representative or the other person required to pay the tax may
recover from any person interested in the estate the amount of the tax
apportioned to the person in accordance with this title.
b. If property held by the personal representative is distributed prior to final
apportionment of the tax, the distributee shall provide a bond or other security for
the apportionment liability in the form and amount prescribed by the personal
representative.
5. a. In making an apportionment, allowances shall be made for any exemptions
granted, any classification made of persons interested in the estate, and for any
deductions and credits allowed by the law imposing the tax.
b. Any exemption or deduction allowed by reason of the relationship of any person
to the decedent or by reason of the purposes of the gift inures to the benefit of the
person bearing such relationship or receiving the gift but, if an interest is subject
to a prior present interest which is not allowable as a deduction, the tax
apportionable against the present interest shall be paid from principal.
c. Any deduction for property previously taxed and any credit for gift taxes or death
taxes of a foreign country paid by the decedent or the decedent's estate inures to
the proportionate benefit of all persons liable to apportionment.
d. Any credit for inheritance, succession, or estate taxes, or taxes in the nature
thereof applicable to property or interests includable in the estate, inures to the
benefit of the persons or interests chargeable with the payment thereof to the
extent proportionately that the credit reduces the tax.
e. To the extent that property passing to or in trust for a surviving spouse or any
charitable, public, or similar gift or devisee is not an allowable deduction for
purposes of the tax solely by reason of an inheritance tax or other death tax
imposed upon and deductible from the property, the property is not included in
the computation provided for in subsection 2, and to that extent no apportionment
is made against the property. The sentence immediately preceding does not
apply to any case if the result would be to deprive the estate of a deduction
otherwise allowable under section 2053(d) of the United States Internal Revenue

Code of 1954, as amended, relating to deduction for state death taxes on
transfers for public, charitable, or religious uses.
6. No interest in income and no estate for years or for life or other temporary interest in
any property or fund is subject to apportionment as between the temporary interest
and the remainder. The tax on the temporary interest and the tax, if any, on the
remainder is chargeable against the corpus of the property or funds subject to the
temporary interest and remainder.
7. Neither the personal representative nor other person required to pay the tax is under
any duty to institute any action to recover from any person interested in the estate the
amount of the tax apportioned to the person until the expiration of the three months
next following final determination of the tax. A personal representative or other person
required to pay the tax who institutes the action within a reasonable time after the
three months' period is not subject to any liability or surcharge because any portion of
the tax apportioned to any person interested in the estate was collectible at a time
following the death of the decedent but thereafter became uncollectible. If the personal
representative or other person required to pay the tax cannot collect from any person
interested in the estate the amount of the tax apportioned to the person, the amount
not recoverable shall be equitably apportioned among the other persons interested in
the estate who are subject to apportionment.
8. A personal representative acting in another state or a person required to pay the tax
domiciled in another state may institute an action in the courts of this state and may
recover a proportionate amount of the federal estate tax, of an estate tax payable to
another state, or of a death duty due by a decedent's estate to another state from a
person interested in the estate who is either domiciled in this state or who owns
property in this state subject to attachment or execution. For the purposes of the
action, the determination of apportionment by the court having jurisdiction of the
administration of the decedent's estate in the other state is prima facie correct.
