Probate Law in South Dakota
What Is a Probate Law?
A probate is a legal process that determines the validity and administration of a last will and testament. When an individual leaves behind assets, the court appoints an executor (if one is not named in the will). In either case, the appointed official collects all remaining assets, pays off any remaining liabilities, and disperses the remaining assets to beneficiaries listed in the will or to beneficiaries designated by the executor (if no will is present), all according to South Dakota probate law.
How Does South Dakota Probate Law and the Probate Process Work?
Locating the Will
In most cases, the decedent leaves clear direction regarding the location of the last will and testament or files one with a primary attorney. However, sometimes people have to go digging for one. In other cases, there is no will and the South Dakota court-appointed executor must handle all assets.
It is also possible that the deceased created a living trust instead. A living trust is a document that places all assets into a trust and that transfer to a designated trustee upon death. Living trusts do not require any probation or courts. Many parties elect to go this route for the sake of convenience and avoiding drawn-out court battles.
Probate cases in South Dakota are under the jurisdiction of the Circuit Courts. The case will typically be handled by the court for the county where the decedent resided.
Notifying the Court
Notifying the court to open the estate is the next step. The South Dakota probate law court clerk can handle this step, unless there is a named executor.
After the court receives notification, a scheduled hearing takes place. This officiates the executor appointee and grants him or her legal authority to operate on behalf of the last will and testament.
If there is no will and no designated executor, the court chooses the executor. Generally, the surviving spouse is first in line. After that, any adult children, parents, or siblings receive consideration.
The executor must identify the decedent’s remaining assets. To do this, she or he reviews any related banking or financial documents and any other personal documents that could lead them toward recovering assets. Some examples of documents to collect are insurance records, titles, stock portfolios, and tax returns or filings.
To freeze and later close accounts, the executor must notify any financial institutions with outstanding accounts of the individual’s death. If there are any physical valuables in the decedent’s property, it is not uncommon for the executor to collect these items to prevent theft or damage.
The executor then determines the valuation of each item of the estate. This can be a lengthy process depending on the ease of locating all assets, including real estate, stocks, bonds, etc. Notifying creditors is the next step.
Generally, the executor notifies creditors associated with the estate so they can make a claim if they have outstanding balances. Creditors have a specific time frame in which to file a claim, and this window can vary depending on state law.
Under South Dakota law, a notice must be mailed to known creditors, giving them 60 days to present their claims. In addition, a notice must be published in the local newspaper for at least 3 consecutive weeks. Potential creditors have 4 months from the first publication, or notice, to present a claim against a South Dakota estate.
Squaring Away Final Payments
The executor pays any funeral expenses (unless the family covers them) and any debts or taxes from the estate. The executor determines which creditor claims are accurate. Then, the executor squares away any outstanding debts to clear the estate of all obligations before being dispersed according to the will.
Proceeding With the Court
After valuing all the decedent’s assets and paying all outstanding debts, the executor submits a report detailing all estate spending to the South Dakota court. At this point, a judge reviews the materials. Assuming everything was done correctly, they render a decision to clear the executor to move forward with the final step.
Executing the Last Will and Testament
At this point, the executor disperses the assets to the designated beneficiaries laid out in the will. Depending on how detailed the will is, this could either be a simple process or it may divide the remaining family. A South Dakota probate law attorney can help you or a loved one avoid mistakes and counsel you on the best course in the event of a family estate battle.
According to South Dakota’s Uniform Probate Code, probate can be informal or formal, regardless of whether there is a will. Informal probate is available when the estate is solvent and there are no disputes. The executor, once approved by the court, pays the estate’s debts and distributes the remaining assets. Once complete, a closing statement is filed with the court to conclude the process. However, if formal probate is required, a judge will oversee the process, thus approving the executor’s actions and hearing any disputes.
If there is no last will and testament, the executor assigns beneficiaries in accordance with South Dakota state laws. Generally speaking, the surviving spouse is first in line to receive any remaining assets. After that, the decedent’s children come next. Any surviving siblings would be next. From there, the executor works down through the surviving family based on their direct relation.
Is Probate Law Necessary?
No. There are alternatives to probating a will, but this really depends on the circumstances surrounding the decedent. The larger, more complex estates require attention to detail and patience as the executor works through all the different assets. Smaller estates are straightforward, which means involving the South Dakota probate law court may not be necessary to settle the estate.
South Dakota estates valued over $50,000 must go through some form of probate. However, South Dakota statute allows for property from smaller estates to be transferred without probate. Beginning 30 days after death, property from these estates can be transferred using only an affidavit.
What Are the Differences Between a Living Trust and a Will?
Living trusts are a way to avoid probation. However, this is only one of the primary differences between a living trust and a will. Another main difference is that a living trust is only as good as the assets therein. This means that if you pass away without funding the trust with your assets, it is practically worthless. On the other hand, you do not have to fund a will, as you merely choose where to transfer your assets upon your death. It is important to note that there is no perfect solution for everyone.When deciding between a living trust and a will, bear in mind your risk of losing mental soundness or how close you may be to death.
Setting up where your assets go after you die is an important decision. This is why you should consult with a South Dakota probate law attorney to make the correct decision.
Work With an Experienced Local Probate Law Attorney in South Dakota
Probate law attorneys assist with valuing your total assets and can provide insight into what the best move would be for you. Are you in need of a South Dakota probate law attorney who can help you and preserve the future of your family? We can even help you connect with an attorney across South Dakota state lines.
Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced probate law lawyer in your area!