Common Questions About Estate Planning in South Dakota

Scott Swier
Founding Member, Attorney At Law

 

1.         My husband and I want identical wills.  Can we make a joint will, or do we both need separate wills?

            In South Dakota, you and your husband can make a joint will.  However, our law firm does not recommend doing this.  One of the great advantages of making your own will is that you can change it as often as want. Your circumstances may change over the years.  Tax laws may also change.  You may outlive your husband by five years or fifty years.  Therefore, you and your husband should each have a separate will.

2.         If I do not make a will, does the State of South Dakota take my property?

           No.  Under these circumstances, the State of South Dakota will usually not take your property.  However, if you      don’t make a will, the State of South Dakota will decide who takes your property.  If you die without a will and your relatives cannot be found, then the State of South Dakota may receive your property.

3.       Can I disinherit my husband?

          No.  In South Dakota, married persons may not completely disinherit their surviving spouse, unless the spouse agrees.   While it is true that you may dispose of your property in almost any way you wish through your will, there are some restrictions.  Depending on how your will provides for your surviving spouse, the surviving spouse may choose to take an “elective share” in lieu of the provision made in the will.  The amount of this “elective share” is determined by the length of the marriage. 

4.       Can I disinherit my children? 

          Yes.  If you have children, you are not required to leave them any portion of your estate.  A common misunderstanding is that you must leave each child at least one dollar.  Today, your will may simply state, “I have intentionally failed to provide for my son, James.”

5.       Do I have to list my property in my will?

          No.  You only need to mention specific property in your will if you want to make a “specific bequest.”  A specific bequest is when you leave certain property to a beneficiary in your will, such as a piece of jewelry, family heirloom, or cash. While you may have a few specific bequests, most people leave the large majority of their estate to beneficiaries by percentages or fractions in their residuary (remaining) estate.

6.       Can I change or revoke my will after I sign it?

          Yes.  Your will is in effect until it is changed or revoked.  You may do this as often as you wish as long as you are legally competent to do so.  In fact, it is recommended that you review your will every two to four years.  You should also review your will if you have a change in tax laws, family circumstances, or in the amount and kind of property you own.  Of course, any change to your will requires a careful analysis to make sure that it reflects your wishes.

7.       What is a Personal Representative?

          A Personal Representative (previously known as an executor) is the person who manages your legal affairs after your death.  Your Personal Representative manages your estate and distributes its assets according to your will.  Under South Dakota law, a Personal Representative is entitled to receive compensation directly from your estate’s assets for his services.

8.       Should I give a copy of my will to my Personal Representative or to my children?   

          Under most circumstances, you should not give a copy of your will to your Personal Representative, children, or anyone else who might have an interest in your estate.  You never know what the future may hold, and you may want to change your will.  You also do not want “old” copies of your will floating around because this could cause future confusion and hard feelings.  Our law firm does recommend that you tell your Personal Representative where your original will is located. 

9.       Where should I keep my will?

          Obviously, you want to keep your will in a safe and secure place.  Our law firm recommends that you keep your original will at your attorney’s office.  You should keep a copy of your will at home with a note describing where the original will is located.

10.     How does someone challenge my will?

          A person can challenge your will by attempting to prove in court that:

  • you were under duress or undue influence when making your will;
  • you were incompetent or unable to understand the results of your will when writing it; or
  • your will does not meet the requirements that make it valid under South Dakota law.

11.     How much does a will cost?

An attorney’s fee is usually based on his time and work involved, the difficulty of your legal issues, and the attorney’s experience.  Fees may and should be discussed openly with your attorney, preferably at your first meeting.

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