§ 30.1-15-12 — (3-412) Formal testacy proceedings - Effect of order - Vacation

Subject to appeal and subject to vacation as provided herein and in section 30.1-15-13, a
formal testacy order under sections 30.1-15-09 through 30.1-15-11, including an order that the
decedent left no valid will and determining heirs, is final as to all persons with respect to all
issues concerning the decedent's estate that the court considered or might have considered
incident to its rendition relevant to the question of whether the decedent left a valid will, and to
the determination of heirs, except that:
1. The court shall entertain a petition for modification or vacation of its order and probate
of another will of the decedent if it is shown that the proponents of the later-offered will:
a. Were unaware of its existence at the time of the earlier proceeding; or
b. Were unaware of the earlier proceeding and were given no notice thereof, except
by publication.
2. If intestacy of all or part of the estate has been ordered, the determination of heirs of
the decedent may be reconsidered if it is shown that one or more persons were
omitted from the determination and it is also shown that the persons:
a. Were unaware of their relationship to the decedent;
b. Were unaware of the decedent's death; or
c. Were given no notice of any proceeding concerning the decedent's estate, except
by publication.
3. A petition for vacation under either subsection 1 or 2 must be filed prior to the earlier of
the following time limits:
a. If a personal representative has been appointed for the estate, the time of entry of
any order approving final distribution of the estate, or, if the estate is closed by
statement, six months after the filing of the closing statement.
b. Whether or not a personal representative has been appointed for the estate of the
decedent, the time prescribed by section 30.1-12-08 when it is no longer possible
to initiate an original proceeding to probate a will of the decedent.
c. Twelve months after the entry of the order sought to be vacated.
4. The order originally rendered in the testacy proceeding may be modified or vacated, if
appropriate under the circumstances, by the order of probate of the later-offered will or
the order redetermining heirs.
5. The finding of the fact of death is conclusive as to the alleged decedent only if notice
of the hearing on the petition in the formal testacy proceeding was sent by registered
or certified mail addressed to the alleged decedent at the alleged decedent's
last-known address and the court finds that a search under subsection 2 of section
30.1-15-03 was made.
If the alleged decedent is not dead, even if notice was sent and search was made, the alleged
decedent may recover estate assets in the hands of the personal representative. In addition to
any remedies available to the alleged decedent by reason of any fraud or intentional
wrongdoing, the alleged decedent may recover any of the estate or its proceeds from
distributees which is in their hands, or the value of distributions received by them, to the extent
that any recovery from distributees is equitable in view of all of the circumstances.