Wills & Probate Law South Dakota

WILLS AND PROBATE IN SOUTH DAKOTA

The law relating to the Wills and probate of Wills in the State of South Dakota is governed by Title 29A of the South Dakota Statute. When a person dies, their estate (property) must be distributed to their heirs. Probate is the legal process by which estates of deceased persons are distributed. The function of the court is to protect the property rights of the decedent in passing property to their heirs. If there is no will left behind by the deceased the estate need to be distributed by the laws of the State described as Intestate succession by the heirs.

INTESTATE SUCCESSION

Any part of a decedent's estate not effectively disposed of by will or otherwise passes by intestate succession to the decedent's heirs as prescribed in this code, except as modified by the decedent's will.

A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or all members of that class had disclaimed their intestate shares.

Share of the spouse

The intestate share of a decedent's surviving spouse is:

  1. The entire intestate estate if:
    1. No descendant of the decedent survives the decedent; or
    2. All of the decedent's surviving descendants are also descendants of the surviving spouse;
  2. The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
  3. Shares of heirs other than surviving spouse
  4. Any part of the intestate estate not passing to the decedent's surviving spouse, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
    1. To the decedent's descendants by representation;
    2. If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent;
    3. If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;
    4. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or by representation to the descendants of the decedent's paternal grandparents or either of them if both are deceased; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

Kindred of half blood

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

WILL

An individual eighteen or more years of age who is of sound mind may make a will.

A will is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. A will not valid as a holographic Will if it is not:

  1. In writing;
  2. Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and
  3. Signed in the conscious presence of the testator by two or more individuals who, in the conscious presence of the testator, witnessed either the signing of the will or the testator's acknowledgment of that signature.

Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting.

The document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute

  1. the decedent's will,
  2. a partial or complete revocation of the will,
  3. an addition to or an alteration of the will, or
  4. a partial or complete revival of a formerly revoked will or of a formerly revoked portion of the will.

WITNESS

The following person may witness a 'Will':

    1. An individual generally competent to be a witness may act as a witness to a will.
    2. The signing of a will by an interested witness does not invalidate the will or any provision of it.

CHOICE OF LAW

A written will is valid if executed or if its execution complies with the law at the time of execution of the jurisdiction where the will is executed, or of the law of the jurisdiction where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed on or after July 1, 1995, may be established only by

    1. provisions of a will stating material provisions of the contract,
    2. an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or
    3. a writing signed by the decedent evidencing the contract.

DEPOSIT OF WILL

A will may be deposited by the testator or the testator's agent with any court for safekeeping. The will must be sealed and kept confidential. During the testator's lifetime, a deposited will must be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible, and to ensure that it will be resealed and kept on deposit after the examination. Upon being informed of the testator's death, the court shall notify any person designated to receive the will and deliver it to that person on request; or the court may deliver the will to the appropriate court.

PROBATE

The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to the person's property are subject to the restrictions and limitations contained in this code to facilitate the prompt settlement of estates. Upon the death of a person, that person's real and personal property devolves to the persons to whom it is devised by will or to those indicated as substitutes for them.

In cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to the heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, rights of creditors, elective share of the surviving spouse, and administration.

ORDER OF PROBATE FOR WILL

A will shall be declared to be valid by an order of informal probate by the clerk of court, or an adjudication of probate by the court. To acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or clerk, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters.

DEVOLUTION AND ADMINISTRATION PROCEEDINGS

Persons interested in decedents' estates may apply to the clerk of court for determinations in the informal proceedings, and may petition the court for orders in formal proceedings within the court's jurisdiction.

The court may hear and determine formal proceedings and distribution of decedents' estates after notice. Persons notified are bound though less than all interested persons may have been given notice.

The court has jurisdiction of any other action or proceeding concerning a succession or to which an estate, through a personal representative, may be a party, including actions to determine title to property, and of any action or proceeding in which property distributed by a personal representative or its value is sought to be subjected to rights of creditors or successors of the decedent.