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John Elder
John Elder, Estate & Elder Law
Category: Estate Law
Satisfied Customers: 4631
Experience:  Over 14 years experience in Medicaid, Estates, Trust.
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In September 1997, my mother died in the state of Washington.

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In September 1997, my mother died in the state of Washington. In her will, she passed on some North Dakota mineral rights to my brother and I. We contacted a North Dakota attorney and he filled an Affidavit of Heirship With Indemnity, along with the will and death certificate. The documents were filed with the Register of Deeds in the involved county, in September 1998.

In May 2007, we were contacted by a landman, who eventually offered a lease on the mineral rights. We took his offer and the transaction was handled by us signing the lease in the presence of a Notary Public. Payment was done using a Sight Draft. We received our full payment and there were no complications.

In June 2007, we filed a Statement of Claim of Mineral Interest with the involved county.

A well was eventually drilled on the property and in April 2009, a Division Order was signed. Since then we have been receiving royalty payments from the oil/gas proceeds. There has never been any dispute about ownership of the mineral rights.

In December 2012, I contacted a broker and offered to sell my mineral rights. After agreeing on a price, a mineral deed and bank draft was signed. There has been no money exchanged at this point.

Yesterday I received a call from the broker. He advised no probate for the mineral rights had been filed in North Dakota. He stated one needed to be completed. The offer was that they would pay 1/2 the agreed price with the remained be paying after the probate had been completed. The requirement was that I would need to sign an agreement, stating I would cooperate in getting the probate completed. I have not seen the agreement yet. It should be arriving today. Payment will be completed through a wire transfer.

I feeling uncomfortable. It seems once I have signed an additional agreement, I have entered a slippery slope. The original agreement has been changed so I would be the one defaulting if problems developed.

What to do?

Thank you for your question.


Unfortunately to have the actual ownership of the mineral rights to the property transferred to you and your brother you are going to have to go through the steps of informal probate in North Dakota. Real Property rights like this require informal probate to transfer the actual title to the property to the heirs named in the Will.


It is really not that big of a deal so long as you and your brother are in agreement and get along. Frankly it does not matter that you have been receiving income, etc. There is no reason to tell the probate court this.


All you need to do is go through the steps of informal probate. Here is a great outline of the steps that are necessary from the North Dakota probate court.


The steps are set out under "Opening the Probate Estate" Section B.


It will take at least 3 months to publish and let the Notice to Creditors expire before title to the property is clear so that you can complete the sale transaction.



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Customer: replied 4 years ago.

Okay, that answers part of my question. Now to the Agreement I received.


1) I am agreeing to cooperate in their efforts to complete heirship or probate proceedings for my mother


2) I agree to fully participate in all quiet title, probate and heirship proceedings including signing documents, submitting written or oral testimony. I agree not to interfere with the proceeding and if I do, it would be a breach of contract.


3) The land description is included.


4) I acknowledge sale is pending title verification.


5) I agree to accept payment for 1/2 of the interest ($xxx,xxx) in the described lands and acknowledge the mineral deed will be placed in record. The balance will be paid and subject to completion. In the event the title failure affecting in excess of 50% of the interest, I will refund the proportionate amount of the prior payment.


6) I represent the information is true.


My brother and I are both in agreement. There are no other heirs. The title is clear and there are no liens against it. The purchaser is paying all probate costs.


What are the pitfalls, if any, that you see?


I am away from my desk at the moment. I will have to delay my response until about 9:00 pm EST.
This is fairly basic. The agreement is just you agreeing to cooperate to do what you thought you already did. Really I do not see any hidden issues that you should watch out for. Really you have to go through this or be in breach of the contract for sale.
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