South Dakota Probate
When someone dies, their estate must be settled. That is the purpose of the estate administration. Estate administration is a court-supervised process that involves the probating of the will, management of the decedent’s estate, payment of their debt, distribution of their assets, and resolution of disputes related to their estate. In South Dakota, the Circuit Court handles probate matters and there is a Circuit Court in each county. The Circuit Court is also referred to as the probate court. While probating the will is the first part of the process, even intestate estates are required to go through administration.
To get the process started, a petition, the death certificate, and the original will must be filed with the court that is in the South Dakota county in which the decedent lived. The person who is to serve as the personal representative is the person who files the paperwork to initiate the process. If the court determines that the person is qualified and approves their petition, the person would be authorized to serve as the personal representative. They may be required to post a bond. The personal representative, sometimes referred to as the executor, has the duties and responsibilities associated with settling the decedent’s estate.
Notify interested parties. An important part of the process is to ensure that all interested parties are aware of the decedent’s death and that their estate is being probated. The personal representative is required notify beneficiaries named in the will, heirs, and creditors.
Inventory estate. One of the duties of the personal representative is to determine the value of the estate. After identifying the assets, their date of death value will have to determined.
Pay expenses and debts. The personal representative is responsible for paying expenses and debts, including funeral expenses, medical expenses, and other unpaid debt based on claims filed by creditors.
Distribute assets. Next, the personal representative can distribute the remaining assets. This involves transferring titles or deeds of real estate or other items into the names of beneficiaries as specified in the will. If the decedent is intestate, the personal representative must follow the directives of South Dakota law.
South Dakota’s intestate succession law describes how an estate must be distributed in instances where there is no will. SD Codified L § 29A-2-101 et seq. The law is designed so that the decedent’s closest next of kin inherits. This is often the decedent’s surviving spouse and children. However, it depends on the relatedness of the relatives who survive the decedent.
One of the more unpleasant aspects of estate administration is when there are disagreements. Grief, coupled with difficult family relationships, can spill over into the probate process and lead to probate disputes over such issues as whether the will is valid or who should serve as personal representative. Poorly drafted estate documents such as the will or trust can lead to confusion that can only be resolved by a probate judge. What all litigation has in common is that it can potentially lead to a significant delay in asset distribution and added expense to the estate.
Issues that often lead to probate ligation include:
- Will contest
- Will construction
- Fiduciary removal
- Creditor claims
- Heirship claims
- Contested guardianship
- Breach of fiduciary duty
- Failure to account
Note that litigation related to a probate matter can only be initiated by someone who has legal standing to do so. For example, for a will challenge, typically beneficiaries named in the will, legal heirs, and the fiduciaries would have standing.
According to South Dakota law there if the estate is classified as “small” there are alternatives for a quicker transfer of property.
Collection of personal property by affidavit. If an estate has assets with a value of $50,000 or less, then those assets can be distributed to someone claiming to have a right to the property without the estate having to go through probate. That person is known as a successor of the decedent with respect to that property. To take advantage of this expedited process, the 30-day waiting period must have ended and the following conditions must be met:
- A petition to appoint the personal representative must granted or submitted
- The estate must not be indebted to the Department of Social Services for medical institutional care
- The claiming successor of the decedent is entitled to the property
SD Codified L § 29A-3-1201
Informal probate. This alternative is available to any size estate. The personal representative must get approval from the court after submitting a written request that includes the reason for the request. SD Codified L § 29A-3-301