My cousins and I inherited mineral rights in the Bakken field in North Dakota. the well has been producing since Feb. 5 2009 and we're still trying to get paid. AED is the land company that contacted us in the spring of 2009 and we have supplied all documents requested. There has been many delays with the land company followup and I'm wondering if anyone out there has any suggestions on how to expedite this or experience with either Conoco Phillips or AED.
Bette
Dear Ms. Ganske,
I am not an attorney nor am i experienced in North Dakota law, but I am curious…in North Dakota, is not a suit to quiet title reserved to a suit against adverse claimants, as it is in other states?
Thanks for your time.
Debra Ganske said:
You inherited mineral rights. Was the decedent’s estate probated? If not, then perhaps you and your cousins need to contact a lawyer and have that done. If it’s too late to probate the estate, you will still need a lawyer to initiate a QUIET TITLE action. You have to prove to the county district court that you own the minerals. When that is done, the court will quiet title in your name and the court order can be filed with the county recorder. If the estate was probated, then the personal representative should have provided you with a mineral deed conveying the minerals. Again, if that wasn’t done, you should contact the personal representative and demand that a deed be prepared and filed with the county recorder. If the probate case was closed and the personal representative discharged from his/her duties, you will have to get a lawyer to initiate a quiet title action. Until such time as you have clear title record (i.e., the records on file at the county recorder’s office must reflect that you and your cousins own the minerals), you cannot get paid for production. The sooner you take care of this matter, the better. The land company isn’t going to quiet title for you. That’s your responsibility.
We have hired an attorney who is working on our behalf. Most of the wills were probated and my Mom’s is going through that right now, due to be finished by the end of the month. We’re having great difficulty communicating with the company because their land company has not handled this in a timely or professional manner. (one land man got drunk and started threatening by email) It’s been a joy. Thanks for your imput.
Debra Ganske said:
Dear Mr. Cotten:
ND quiet title actions are governed by North Dakota Century Code (NDCC) Chapter 32-17, Actions to Quiet Title and Determine Claims to Real Estate. Links below:
http://www.legis.nd.gov/information/statutes/cent-code.html
http://www.legis.nd.gov/cencode/t32c17.pdf
NDCC Section 32-17-01, Action to determine adverse claims, provides, “An action may be maintained by any
person having an estate or an interest in, or lien or encumbrance upon, real property, whether in
or out of possession thereof and whether such property is vacant or unoccupied, against any
person claiming an estate or interest in, or lien or encumbrance upon, the same, for the purpose
of determining such adverse estate, interest, lien, or encumbrance.”
Because the poster states she AND her cousins inherited minerals, the poster may bring a quiet title action with herself styled as the plaintiff and her cousins styled as the defendants and ask the court to quiet title to her share of the inherited minerals. Her cousins may counterclaim and ask the court to do the same for them. It’s a means to an end: getting a court order declaring ownership which can be filed with the county recorder. So long as the decedent remains the record owner of the minerals, neither the poster nor her cousins will be able to force the operator to pay them royalties on the production.
A declaratory judgment action (which does not require adverse parties) may be combined with or possibly substituted for a quiet title action. Declaratory judgments are governed by NDCC Chapter 32-23.
http://www.legis.nd.gov/cencode/t32c23.pdf
32-23-01. Court of record may enter a declaratory judgment. A court of record within
its jurisdiction shall have power to declare rights, status, and other legal relations whether or not
further relief is or could be claimed. No action or proceeding shall be open to objection on the
ground that a declaratory judgment or decree is prayed for. The declaration may be either
affirmative or negative in form and effect, and such declaration shall have the force and effect of
a final judgment or decree.
32-23-02. Power to construe contracts, statutes, and wills. Any person interested
under a deed, will, written contract, or other writings constituting a contract, or whose rights,
status, or other legal relations are affected by a statute, municipal ordinance, contract, or
franchise, may have determined any question of construction or validity arising under the
instrument, statute, ordinance, contract, or franchise and may obtain a declaration of rights,
status, or other legal relations thereunder.
****
We don’t know when the decedent died or whether the decedent’s estate was probated or is currently in probate. If a probate estate is open, the poster’s attorney may use NDCC Section 32-23-04 in the declaratory judgments chapter to force the personal representative to deliver a mineral deed to the will beneficiaries. It should be noted that the probate of estates is governed by Title 30.1, Uniform Probate Code. Attention should be paid to the following statute concerning time limitations:
30.1-12-08. (3-108) Probate, testacy, and appointment proceedings - Ultimate time
limit. No informal probate or appointment proceeding or formal testacy or appointment
proceeding, other than a proceeding to probate a will previously probated at the testator’s
domicile and appointment proceedings relating to an estate in which there has been a prior
appointment, may be commenced more than three years after the decedent’s death, except:
1. If a previous proceeding was dismissed because of doubt about the fact of the
decedent’s death, appropriate probate, appointment, or testacy proceedings may be
maintained at any time thereafter upon a finding that the decedent’s death occurred
prior to the initiation of the previous proceeding and the applicant or petitioner has
not delayed unduly in initiating the subsequent proceedings.
2. Appropriate probate, appointment, or testacy proceedings may be maintained in
relation to the estate of an absent, disappeared, or missing person for whose estate
a conservator has been appointed, at any time within three years after the
conservator becomes able to establish the death of the protected person.
3. A proceeding to contest an informally probated will and to secure appointment of the
person with legal priority for appointment in the event the contest is successful may
be commenced within the later of twelve months from the informal probate or three
years from the decedent’s death.
4. An informal appointment or a formal testacy or appointment proceeding may be
commenced thereafter if no proceeding concerning the succession or estate
administration has occurred within the three-year period after the decedent’s death,
but the personal representative has no right to possess estate assets as provided in
section 30.1-18-09 beyond that necessary to confirm title to the assets in the
successors to the estate and claims other than expenses of administration may not
be presented against the estate.
5. A formal testacy proceeding may be commenced at any time after three years from
the decedent’s death for the purpose of establishing an instrument to direct or
control the ownership of property passing or distributable after the decedent’s death
from one other than the decedent when the property is to be appointed by the terms
of the decedent’s will or is to pass or be distributed as a part of the decedent’s estate
or its transfer is otherwise to be controlled by the terms of the decedent’s will.
These limitations do not apply to proceedings to construe probated wills or determine heirs of an
intestate. In cases under subsection 1 or 2, the date on which a testacy or appointment
proceeding is properly commenced shall be deemed to be the date of the decedent’s death for
purposes of other limitations provisions of this title which relate to the date of death.
http://www.legis.nd.gov/cencode/t301c12.pdf
Above is probably more information than necessary to answer your question, but does highlight the need for the poster to immediately retain the services of an attorney to take the necessary steps to ensure the poster’s ownership interest in the minerals is secured and recorded with the county recorder.
DG
Dear Ms. Ganske,
No, it is not too much information. It appears that the statue to quite title is used for or against adverse claimants.
Thank you for your research.
Debra Ganske said:
Dear Mr. Cotten:
ND quiet title actions are governed by North Dakota Century Code (NDCC) Chapter 32-17, Actions to Quiet Title and Determine Claims to Real Estate. Links below:
http://www.legis.nd.gov/information/statutes/cent-code.html
http://www.legis.nd.gov/cencode/t32c17.pdf
NDCC Section 32-17-01, Action to determine adverse claims, provides, “An action may be maintained by any
person having an estate or an interest in, or lien or encumbrance upon, real property, whether in
or out of possession thereof and whether such property is vacant or unoccupied, against any
person claiming an estate or interest in, or lien or encumbrance upon, the same, for the purpose
of determining such adverse estate, interest, lien, or encumbrance.”
Above is probably more information than necessary to answer your question, but does highlight the need for the poster to immediately retain the services of an attorney to take the necessary steps to ensure the poster's ownership interest in the minerals is secured and recorded with the county recorder.
DG
I found this conversation while doing some other research. An heir cannot substitute a Quiet Title Action to transfer title to property where minerals are stuck in someone’s estate. There is no time bar on probating, just the type of probate which can be opened.
The legal reason that you cannot substitute a Quiet Title Action for a probate in this case is because, as stated in this thread, NDCC Section 32-17-01provides that “[a]n action may be maintained by any person having an estate or an interest in, or lien or encumbrance upon, real property…”; however, an heir apparent (that is an heir who is certain to inherit unless he or she dies first or is excluded by a valid will - Black’s Law Dictionary, 8th Ed. 741) has no interest of any kind (see N.D.C.C. Section 47-02-20. Mere Possibility not an interest. A mere possibility, such as the expectancy interest of an heir apparent, is not to be deemed an interest of any kind."
In order to prevail in a Quiet Title Action, you have to establish that you have an interest - that at some point, title was transferred to you. Title having been transferred to your grandma or mom or dad is not good enough.
Attorneys in North Dakota who are doing this should take a closer look at the law. It is not the appropriate way to transfer title to these interests.
DB: Yes, the statute is clear and unambiguous.
"An informal appointment or a formal testacy or appointment proceeding may be commenced thereafter if no proceeding concerning the succession or estate administration has occurred within the three-year period after the decedent's death, but the personal representative has no right to possess estate assest as provided in section 30.1-18-09 beyond that necessary to confirm title to the assets in the successors estate and claims other than expenses of administration may not be presented against the estate." N.D.C.C. 30.1-12-08(4).
The comment you cited (which was incomplete) is just that - a comment. I AM an attorney, and I HAVE probated esates more than three years old for the purpose of transferring title to mineral interests. The only thing that is different is that the letters issued to the Personal Representative are restricted, which has nothing to do with their ability to convey the interests at issue to those determined to be heirs.
You also cited from a 1975 case (over 35 years ago) - Brooks v. Bogart - but the quote you used was taken out of context, just like the comment. "It is settled law that the real property in an intestate's estate devolves to the heirs according to the intestate succession statutes immediately upon the intestate's death. Section 30-1701, N.D.R.C. 1943, provides as follows:
"There may be a summary administration of the estate of a deceased person as provided in this chapter, if:
"1. Upon the return of the inventory of the estate of a deceased person it appears that:
"a. The value of the whole estate does not exceed the sum of fifteen hundred dollars; and
"b. There is a surviving husband or wife or minor child or children of the deceased; or
"2. A petition for summary administration is filed as provided in section 30-17-02."
These provisions do not even exist anymore, as they have long been repealed and the same language has not been replaced in any other code provision.
The current North Dakota Century Code, however, does state that "A mere possibility, such as the expectancy of an heir apparent, is not deemed to be an interest of any kind." N.D.C.C. 47-02-20 and to maintain an action in quiet title, one must have "an interest in" the property.
Debra Ganske said:
AB: North Dakota adopted a version of the Uniform Probate Code. The comment following the time limit provision (3-108) in the UPC states the following:
As originally approved and read with 3-102's requirement that wills be probated before being admissible in evidence, this section created a three-year-from-death time period within which proceedings concerning a succession (other than a determination of heirs, or will interpretation or construction) must be commenced. Unless certain limited exceptions were met, an estate became conclusively intestate if no formal or informal estate proceeding was commenced within the three year period, and no administration could be opened in order to generate a deed of distribution for purposes of proving a succession.
http://www.law.upenn.edu/bll/archives/ulc/upc/final2005.pdf
The above is for information purposes only because the initial poster indicated that the wills of her predecessors in interest were being probated. The statute is clear and unambiguous. An estate must be probated within 3 years unless an exception applies. Additionally, "It is settled law that the real property in an intestate's estate devolves to the heirs according to the intestate succession statutes immediately upon the intestate's death." Brooks v. Bogart, 231 N.W.2d 746, 752 (N.D. 1975). Accordingly, I believe your concerns about "an heir apparent" are unwarranted and a quiet title action is indeed appropriate. Of course, you're entitled to your own opinion and everyone should consult their own attorneys concerning these important matters.
I wonder why Ganske deletes her posts when an authority sets her straight? Ganske's postings are still available as quotes in continuing posts. I bet Ganske would like a way to delete those as well.
Now if another snippy, ill tempered pseudonym would just do the same, this will be a better board.
AB said:
DB: Yes, the statute is clear and unambiguous.
"An informal appointment or a formal testacy or appointment proceeding may be commenced thereafter if no proceeding concerning the succession or estate administration has occurred within the three-year period after the decedent's death, but the personal representative has no right to possess estate assest as provided in section 30.1-18-09 beyond that necessary to confirm title to the assets in the successors estate and claims other than expenses of administration may not be presented against the estate." N.D.C.C. 30.1-12-08(4).
The comment you cited (which was incomplete) is just that - a comment. I AM an attorney, and I HAVE probated esates more than three years old for the purpose of transferring title to mineral interests. The only thing that is different is that the letters issued to the Personal Representative are restricted, which has nothing to do with their ability to convey the interests at issue to those determined to be heirs.
You also cited from a 1975 case (over 35 years ago) - Brooks v. Bogart - but the quote you used was taken out of context, just like the comment. "It is settled law that the real property in an intestate's estate devolves to the heirs according to the intestate succession statutes immediately upon the intestate's death. Section 30-1701, N.D.R.C. 1943, provides as follows:
"There may be a summary administration of the estate of a deceased person as provided in this chapter, if:
"1. Upon the return of the inventory of the estate of a deceased person it appears that:
"a. The value of the whole estate does not exceed the sum of fifteen hundred dollars; and
"b. There is a surviving husband or wife or minor child or children of the deceased; or
"2. A petition for summary administration is filed as provided in section 30-17-02."
These provisions do not even exist anymore, as they have long been repealed and the same language has not been replaced in any other code provision.
The current North Dakota Century Code, however, does state that "A mere possibility, such as the expectancy of an heir apparent, is not deemed to be an interest of any kind." N.D.C.C. 47-02-20 and to maintain an action in quiet title, one must have "an interest in" the property.
Debra Ganske said:AB: North Dakota adopted a version of the Uniform Probate Code. The comment following the time limit provision (3-108) in the UPC states the following:
As originally approved and read with 3-102's requirement that wills be probated before being admissible in evidence, this section created a three-year-from-death time period within which proceedings concerning a succession (other than a determination of heirs, or will interpretation or construction) must be commenced. Unless certain limited exceptions were met, an estate became conclusively intestate if no formal or informal estate proceeding was commenced within the three year period, and no administration could be opened in order to generate a deed of distribution for purposes of proving a succession.
http://www.law.upenn.edu/bll/archives/ulc/upc/final2005.pdf
The above is for information purposes only because the initial poster indicated that the wills of her predecessors in interest were being probated. The statute is clear and unambiguous. An estate must be probated within 3 years unless an exception applies. Additionally, "It is settled law that the real property in an intestate's estate devolves to the heirs according to the intestate succession statutes immediately upon the intestate's death." Brooks v. Bogart, 231 N.W.2d 746, 752 (N.D. 1975). Accordingly, I believe your concerns about "an heir apparent" are unwarranted and a quiet title action is indeed appropriate. Of course, you're entitled to your own opinion and everyone should consult their own attorneys concerning these important matters.
Identify yourself, Jim Byrd. You are clearly the alter-ego of another member who is harboring a vendetta. Please state why your profile is set to private and why you have a history of only two replies, both of which were used to blast me? Unlike the coward who created the "Jim Byrd" pseudonym, I have never hidden my identity. And what have you done with my posts? Have you hacked my account? What is going on?
Unlike some people, it's not important to me to get the last word in when engaged in a discussion. I had my say, and AB (whoever he/she may be) can have his or her say. I provided links to substantiate my statements. The fact that AB alleges that I am wrong doesn't make AB right. There is nothing that AB stated that refutes the information I provided. If you want to have a discussion, identify yourself.
Jim Byrd said:
I wonder why Ganske deletes her posts when an authority sets her straight? Ganske's postings are still available as quotes in continuing posts. I bet Ganske would like a way to delete those as well.
Now if another snippy, ill tempered pseudonym would just do the same, this will be a better board....
Forgive me; I had other things to do today. I do, however, wish to address the accusation that AB, an alleged "authority" whom I believe to be a pseudonym for another board member, somehow set me straight. That is false.
A quiet title action may be brought by individuals who have an estate or interest in real property. Prior to the intestate's death, a person who would possibly take through intestate successon only has an expectancy (and thus termed an "heir apparent"). This is because, during the intestate's lifetime, the intestate could disinherit the person by will or transfer the property to someone else. However, upon the intestate's death, the persons who take according the intestate succession laws are known. They are no longer "heirs apparent." They are heirs. It is established law that real property in an intestate's estate devolves to the heirs according to the intestate succession statutes immediately upon the intestate's death. That has always been the law and it is still the law. Thus, a person (heir) who takes by intestate succession immediately upon the intestate's death has an estate or interest in real property and therefore has standing to bring a quiet title action.
When you take the time to review the ND case that I cited, you will see that it is a quiet title action. Here is the citation and link:
Brooks v. Bogart, 231 N.W.2d 746 (N.D. 1975)
http://www.ndcourts.com/_court/opinions/9087.htm
Mr. Brooks brought a quiet title action alleging title to real property on the basis of adverse possession. The record title owner of the property was John Coulton who died intestate in 1943. The trial court ruled that John Coulton was the owner of the property; and that at the time of his death intestate in 1943, the property devolved to his heirs pursuant to the applicable North Dakota laws of intestate succession, and that Mr. Brooks did not acquire title by adverse possession.
Mr. Brooks appealed claiming that the court erred when it applied the law of intestate succession to determine ownership. Mr. Brooks argued that the court should have applied the law for informal administration of estates that was in effect in 1943 when Mr. Coulton died.
The North Dakota Supreme Court emphatically stated, "We disagree. It is settled law that the real property in an intestate's estate devolves to the heirs according to the intestate succession statutes immediately upon the intestate's death."
The North Dakota Supreme Court then went on to set forth the statute for informal administration of estates that existed in 1943 when Mr. Coulton died and admonished that Mr. Brooks never attempted to avail himself of the prerequisites for summary administration. (But even if he had pursued the matter in a timely fashion, that would not change the identities of the heirs who were entitled to take by intestate succession.)
Again, there is a statute of limitations for the filing of probate cases. "The applicable statute creates a three-year-from-death time period within which proceedings concerning a succession (other than a determination of heirs, or will interpretation or construction) must be commenced. Unless certain limited exceptions were met, an estate became conclusively intestate if no formal or informal estate proceeding was commenced within the three year period, and no administration could be opened in order to generate a deed of distribution for purposes of proving a succession."
AB's analysis fails to distinguish between an "heir apparent" and an actual "heir." I don't think a real attorney would make that kind of mistake. AB's analysis of the cited case shows that AB's reading comprehension skills are questionable. AB needs to pay closer attention to context him- or herself. Whoever AB may truly be, AB certainly is not an authority. And I suspect that "AB" and "Jim Byrd" and possibly a few others are mere pseudonyms for another member who likes to keep his main handle clean, so to speak, while allowing his other handles to do his dirty work or be his admirers. What do you think, Mr. Cotten?
Ms. Ganske, I had no intention of getting involved in your personal drama here. I have no history with you and I have no reason to attack you. And I did not attack you personally, although you seem to feel you are justified in doing so in your response.
"An informal appointment or a formal testacy or appointment proceeding may be
commenced thereafter if no proceeding concerning the succession or estate
administration has occurred within the three-year period after the decedent's death,
but the personal representative has no right to possess estate assets as provided in
section 30.1-18-09 beyond that necessary to confirm title to the assets in the
successors to the estate and claims other than expenses of administration may not
be presented against the estate." N.D.C.C. 30.1-12-08(4)
This sums it up. I use this provision, in the event that I have a situation where someone has died more than three years prior, either died intestate or never had a formal probate opened, and we discover mineral interests that need to be deeded out of that estate. It works. I promise. It is the procedure that the legislature intended to be used. It is why they created that exception.
You can do whatever you want. I will continue following North Dakota law (which, contrary to your assertion, actually requires a judicial determination of who heirs or devisees are in any given estate - they don't just become heirs because you draft them into the heading of a quiet title action as a plaintiff). I'm not going to lose sleep over it because at the end of the day, I am doing the right thing by my client. It is the correct way to do it, not to mention much more cost effective.
I apologize that this discussion has you so paranoid. I hope you can work those issues out for yourself.