The Swier Law Firm Estate Planning and Probate Law FAQs

In South Dakota, an "implied trust" is one which is created by operation of law.

In South Dakota, an express trust is an obligation arising out of a personal confidence reposed in and voluntarily accepted by one for the benefit of another.

In South Dakota, a trust is either express or implied.

In 2012, Congress passed the American Taxpayer Relief Act, and with it, made the concept of “portability” permanent.

"Portability" is a federal estate tax device which provides (1) that any unused estate tax exclusions transfers to the surviving spouse and (2) the surviving spouse is able to use the remaining amount of exclusion for their estate.

Estates that are over the exclusion amount are taxed at a rate of 40%. In 2014, the estate tax exclusion is $5.34 million for individuals and $10.68 million for married couples. Portability allows the unused exclusion to pass to the surviving spouse by filing IRS Form 706 within nine months of the passing of the spouse.

Here is an example of how portability is used:

If wife passes away in 2014 with $2 million of her exclusion unused then husband’s exclusion would total his own exclusion of $5.34 million as well as $2 million from his wife.

Remember, your estate is everything you own. It is your cars, land, collectibles, and other personal property. $5.34 million can be accumulated rather quickly. Also, it is important to remember that this is a federal law, and that the permanence of this concept may not continue if Congress decides to change the law.

In South Dakota, there are two primary ways to update your Will:

(1) You can properly execute a new Will that revokes any prior Will, or

(2) You can properly execute a Codicil to the Will. (A Codicil is a separate document that adds to and/or replaces one or more provisions in an existing Will).
 

In South Dakota, the 14 main duties of a Personal Representative are:

(1) determine if there are any probate assets;

(2) find, gather, and inventory the deceased's assets;

(3) collect monies owed (including income, unpaid salary, and vacation pay);

(4) establish an estate checking account;

(5) determine who is going to receive what and how much under the Will;

(6) place a value on the estate's assets;

(7) publish legal notice to the estate's potential creditors;

(8) review the validity of all claims against the estate;

(9) pay funeral bills, debts, and valid claims;

(10) pay the estate's administrative expenses;

(11) complete paperwork, such as canceling utilities and charge cards;

(12) file and pay income and estate taxes;

(13) distribute the remaining property according to the instructions provided in the deceased's Will; and

(14) complete the probate.
 

In South Dakota, probate usually occurs in the county where the deceased resided at the time of his or her death.
 

In South Dakota, the main purpose of probate is to transfer the decedent's property to his heirs and beneficiaries. If there is no property to transfer, there is usually no need for probate.

Probate is also used to (1) collect taxes resulting from the deceased's death; (2) pay any outstanding debts; and (3) set a deadline for creditors to file claims.

In South Dakota, the Personal Representative (also known as the Executor) is the person named in a will who is "in charge" of the probate process.

In South Dakota, when a person dies, his Last Will & Testament goes through the probate process. Probate is simply the process by which a Last Willl & Testament is determined to be the person's final dispositive statement and confirms the appointment of the individual or institution that has been named to administer the estate.

The term probate is also used in the larger sense of probating an estate. Under this scenario, probate is the process in which assets are gathered, debts (including taxes and administrative expenses) are paid, and the remaining assets are distributed to the Will's designated beneficiaries.