What is a will and why do you need one?

A will directs how you want your property to be distributed when you die.  In South Dakota, anyone who is at least eighteen years old and of sound mind can make a will.  A will does not take effect until you die.  Also, as long as you are of sound mind, you can change your will as often as you want. 

In South Dakota, a will always needs to be in writing.  A will written in your own handwriting is called a holographic will.  South Dakota will recognize this type of will under certain circumstances.  However, our law firm does not recommend that you write your own will.  These wills are frequently unclear, incomplete, and poorly written.  A better option is a will that is properly witnessed, known as an attested will.  An attested will, with a special notarized affidavit, is a self-proving willOur law firm recommends that you have a properly written, attested, and self-proving will.   

Your will can do many things.  First, your will can direct how your property will be distributed after you die.  Second, you get to name the persons that will take your property, known as the beneficiaries.  Third, you can provide for several contingencies because you do not know who will be living at the time of your death.

Here’s an example:  Presume that you are married and have five children.  You probably want to leave everything to your spouse.  However, if your spouse dies before you do, then you could leave everything to your five children.  You could also decide what would happen if one of your five children dies before you.  Do you want that deceased child’s share to go to your remaining children or to your child’s spouse or children (your grandchildren)?  What happens if you have no surviving spouse or children – is there a charitable organization that you want to honor through your will? 

Another benefit of a will is that you get to choose your personal representative.  The personal representative is the person who manages your estate.  Under South Dakota law, your personal representative has four main duties: (1) to gather your assets, (2) to protect your assets, (3) to pay your debts and expenses (including any taxes), and (4) to distribute the remaining assets to your beneficiaries.  

You may name more than one person to serve as the personal representative.  These persons are called co-personal representatives.  This structure may work in some cases.  However, because both co-personal representatives often have to agree on all decisions (and sign everything) it may create more problems than it is worth.  You should definitely discuss this co-personal representatives issue with your attorney.

For young families, another important benefit of having a will is that you can name the person you want to serve as the guardian of your minor children.  For the parents, this is often the most difficult estate planning decision to make.  The guardian is the person you designate to raise your minor children until their eighteenth birthdays.  South Dakota courts will normally follow your will’s guardianship wishes.  

A will also allows you to establish a trust and name a trustee.  A trust is a legal arrangement that divides ownership of property into two parts: legal ownership and beneficial ownership.  The trustee is the person who holds the legal ownership of the property.  The trustee controls and manages your property according to your instructions for the benefit of your beneficiaries, who hold the beneficial title to the same property.

Here’s an example of how a trust could work:  Presume that your will leaves everything to your spouse.  In the event that your spouse dies before you do, your will leaves everything to your five minor children.  Because your five children are minors, the state Circuit Court will need to appoint a guardian to manage your children’s finances.  Under South Dakota law, the guardian may be required to file a financial accounting with the state Circuit Court.  Sometimes, the guardian must get the state Circuit Court’s permission to spend money for the children.  Perhaps most alarming is that as soon as your minor child turns eighteen, the child receives his estate share outright.  Of course, most eighteen year-olds are not mature enough to handle this kind of major financial responsibility.

A trust, however, allows you to designate whether or not the trustee must post a bond or file accountings with the state Circuit Court.  You can also grant the trustee discretion as to how to spend or invest the trust assets and designate the age that the trustee can provide the property to your children.  For example, you might postpone distribution until at least age thirty, or sometimes half at age thirty and half at forty.  In other words, your trustee can make sure that the funds are used sensibly, such as to pay for a child’s college education, before your trustee has to turn the property over to the child.

Estate planning and probate in South Dakota can be very intricate, detailed, and overwhelming. Contact Swier Law Firm, Prof. LLC, for help getting started preparing for your future.

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