Get Answers to Your Highest Priority South Dakota Legal Questions

Swier Law Firm FAQ

Have questions? We have answers! Our South Dakota attorneys answer the questions they hear most often from clients just like you.

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  • What is a data breach under South Dakota's Data Breach Notification Law?

     

    South Dakota's Data Breach Notification Law defines a “breach of system security” as the unauthorized acquisition of unencrypted computerized data or encrypted computerized data and the encryption key by any person that materially compromises the security, confidentiality, or integrity of personal or protected information maintained by the information holder.

    The term does not include the good faith acquisition of personal or protected information by an employee or agent of the information holder for the purposes of the information holder if the personal or protected information is not used or subject to further unauthorized disclosure.

  • In South Dakota, are school board elections partisan or non-partisan?

    In South Dakota, school board members are elected on a non-partisan basis.

  • May a school district require the random drug testing of students who participate in extracurricular activities?

     

    Yes. In Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), the Supreme Court held that mandatory, suspicionless drug testing of public high school students participating in extracurricular activities is a constitutionally reasonable intrusion that furthers a public school’s legitimate interest in deterring drug use among children. 

    The Supreme Court further found that a public school does not need to demonstrate a pervasive drug problem among the population subject to testing to warrant the intrusion. In sum, the Supreme Court determined that the government’s compelling interest in preventing and eradicating drug use among children outweighs the limited privacy expectations held by public middle and high school students.  

  • What are South Dakota Powers of Attorney and Living Wills?

    Of course, your will does not take effect until your death. However, other estate planning documents (known as “advanced directives”) may be useful during your lifetime.

    A Durable Power of Attorney for Health Care is a document that you, as the “principal,” create by appointing another person, the health care “agent” or “attorney in fact,” to make health care decisions for you should you become incapable of making them yourself. This type of power of attorney is “durable” because it is effective even if you become incapacitated. It is important to note that your “agent” or “attorney in fact” does not need to be a licensed lawyer.  In fact, you can name anyone to serve in this role.   

    A Living Will is a document that instructs your physician and other health care providers as to the circumstances under which you want life-sustaining treatment to be provided, withheld, or withdrawn.

    Similar to a Durable Power of Attorney for Health Care, a Durable Power of Attorney (Financial) is a document that you, as the “principal,” create by appointing another person, the financial “agent” or “attorney in fact,” to make financial decisions for you should you become incapable of making them yourself. Once again, it is important to note that your “agent” or “attorney in fact” does not need to be a licensed lawyer. You can name anyone to serve in this role.   

    You should resist the temptation to use “simple forms” that you may find in a book or on the Internet. South Dakota has particular requirements for advanced directive documents. You should work with your attorney to draft these documents so that they are valid in South Dakota.

  • What does the term "basis" mean in estate planning?

    The term "basis" is what a person has paid for an asset and sometimes money invested in an asset after purchase (Example: what you paid for your house plus what you paid to update the kitchen). This determines gain/loss for income tax purposes.

    There are generally two types of "basis":

    • Stepped-up Basis - Assets get a new basis when they are passed by inheritance (through will or trust). These assets will be re-valued as of the date of death of the owner. If the value of the asset has gone up in value since purchase the new owner will take that asset with a new basis equal to the updated value without paying tax on that increase. This has the potential to save a significant amount of capital gains upon sale in the future.

     

    • Stepped-down Basis - Same as the stepped-up basis except the asset has gone down in value since it was purchased. The new owner would then take that assets with a new reduced (stepped-down) basis. This depends on the value as of the date of death of the owner compared to the price the owner originally purchased the asset.

  • What are considered "assets" under the South Dakota probate code?

    The term "assets" includes essentially everything you own in any form whether or not they have value. This includes, but is not limited to: bank accounts, stocks, jewelry, cars, clothes, real estate and even includes digital assets (e-mail, blog, photos, etc.). 

  • South Dakota Estate Planning - What Is A Codicil?

    A "codicil" is simply a written change to a Will.

  • What is an Ancillary Administration in South Dakota?

     

    An "ancillary administration" is when a probate needs to be opened in another state, generally because a decedent owned real estate there.

  • Will the state of South Dakota take all my money if I don’t have a Will?

    No. The state of South Dakota actually tries hard to replicate what they think you would have wanted to happen with your assets, even if you didn’t say what you wanted. If you die without a Will (known as dying “intestate”) your assets will pass in accordance with South Dakota law. The law starts by looking for people in your life that were closest to you. If you had a spouse your money will start there. In South Dakota, if you had no descendants or if all your descendants were also descendants of your spouse, then your assets will pass to your  spouse.  If you had descendants that were not from your spouse then your assets will start to be divided among different people in percentages.

     

    Despite the state trying to replicate what you would want, it still is much easier to distribute your assets if you have a valid Will at the time of your death. Even if you end up distributing things exactly how they would otherwise be distributed under state law, dying with a Will helps expedite the entire process of probating your estate – it leaves no doubt as to where you want your assets to go to and also helps in naming the personal representative or executor put in charge of sorting it all out.   

     

    Do You Need To Speak With A Lawyer About Estate Planning?

    If you need to speak with an experienced estate planning lawyer please contact us online or call our office directly at 888.864.9981. We will be happy to discuss your legal options!

  • In South Dakota, can I write my Will to say whatever I want it to say?

    Not exactly. Yes, your Will can say anything you want it to say. However, not everything you may write in your Will may be allowed under state law. The biggest thing that the state may have a say over would be if you wanted to disinherit your spouse. The state, if requested by your surviving spouse, can essentially force your estate to provide your surviving spouse a portion of your estate. This legal maneuver harkens back to English law concepts of dower or curtesy, both of which were designed to reserve portions of an estate for the surviving spouse to prevent that spouse from falling into poverty and becoming a burden on the community.

    In South Dakota, the amount of the estate your surviving spouse can claim depends on how long you have been married with the maximum amount of 50% being reached at 15+ years of marriage. Your surviving spouse does not automatically receive this amount; he or she must affirmatively “elect” to take this share, but there are circumstances in which your surviving spouse may be forced to make this election, such as if they are receiving certain income or asset-based benefits.

    Do You Need To Speak With A Lawyer About Estate Planning?

    If you need to speak with an experienced estate planning lawyer please contact us online or call our office directly at 888.864.9981. We will be happy to discuss your legal options!