Probate is a legal proceeding during which the property of a decedent is transferred according to the terms of the decedent’s will or in the absence of a will, to their heirs based on South Dakota law. The estate administration process was designed to protect the rights of beneficiaries and heirs and to ensure the orderly collection, preservation, and transfer of property. In South Dakota the Circuit Court has jurisdiction over probate matters and the personal representative is responsible for carrying out the day-to-day estate administration activities. A probate proceeding must be initiated in the Probate Court (Circuit Court) in the county in which the decedent was domiciled at the time of their death. SD Codified L § 29A-3-201.
Responsibilities of the Personal Representative in South Dakota
A personal representative is a fiduciary with respect to the beneficiaries and heirs of an estate of decedent and is required to act in good faith, with loyalty, and with honesty. They must act with the best interests of the beneficiaries and heirs in mind. If the decedent left a will, the personal representative is called an executor and is the person the decedent nominated for the role. In the absence of a will the personal representative is called an administrator.
Typically the person who wishes to serve as personal representative is the person who initiates probate by filing a petition along with the will with the Probate Court. Before the personal representative has the legal authority to act on behalf of the estate, they must first be appointed by the court and issued a document called, ”letters.” SD Codified L § 29A-3-103. Once appointed, the personal representative is responsible for the day-to-day tasks of estate administration, including completing the following steps:
- Notifying creditors. Those who have an interest in the decedent’s estate must be notified that the estate administration process has been initiated. The personal representative does this by sending beneficiaries and heirs a notice. The notice must be sent within 14 days of appointment. SD Codified L § 29A-3-705
- Taking control of probate assets. Because one of the primary purposes of estate administration is to transfer the assets of the decedent to their beneficiaries and heirs, the personal representative must understand what the estate consists of. One of the first steps in the administration process is to identify the property that is part of the decedent’s probate estate, take control of it, and secure it. Part of the administration process is managing the property. That means making sure bills associated with it are paid and that real estate and vehicles are properly insured. If the decedent had a small business, the personal representative may have to manage that small business for a while. The personal representative must also create an inventory of estate property and send the inventory to any interested party who requests it. SD Codified L § 29A-3-706
- Paying estate debts and expenses. Another primary purpose of estate administration is ensuring that debts that the decedent left behind are paid and that expenses related to the administration process are paid. The first step in this process is for the personal administrator to publish a notice with details about how claims must be filed and the deadline. SD Codified L § 29A-3-801. The personal representative is required to pay claims that are filed on time as long as they are valid and as long as there are sufficient assets in the estate.
- Distributing estate assets. Asset distribution can only occur after debts and expenses have been paid and claims settled. The court must give the personal representative permission before they can distribute assets. The personal representative must distribute assets based on the terms of the will. If there is no will, South Dakota’s law of intestate succession dictates asset distribution.
Closing the Estate
Asset distribution is not the last step in the administration. The estate must be officially closed. For this to happen, the personal representative must submit a request to the court to be discharged. The request is in the form of a statement that confirms that assets have been distributed and debts and expenses have been paid or otherwise resolved. SD Codified L § 29A-3-1003.