Full question:
My father passed away a few months back. My parents were not divorced but my father had not included my mother in his will. My mother is suffering from memory loss for quite a few years, and she is in my care. We live in North Dakota. Can I exercise elective share on behalf of my mother?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: North Dakota
Answer:
In North Dakota, if your mother is incapacitated, you can exercise her elective share as her agent under a power of attorney. The court will appoint a trustee to manage the property for her support. If your mother regains capacity, she can terminate the trust in writing.
According to North Dakota law (N.D. Cent. Code § 30.1-05-06), the right to an elective share is personal to the surviving spouse. If the spouse cannot act personally, their conservator, guardian, or agent with a power of attorney can act on their behalf.
When the elective share is exercised for an incapacitated spouse, the court will set aside the appropriate share of the decedent's estate and appoint a trustee to manage it for the spouse's benefit. The trustee can make necessary expenditures for the spouse's support without needing court approval, considering any other support the spouse may have.
Upon the surviving spouse's death, the trustee will transfer any remaining trust property according to the decedent's will or to the decedent's heirs.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.