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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  • When should I have a joint trust with my spouse?

    Married couples often consider themselves one unit with their spouse. It doesn’t seem to make sense that separate revocable trusts would be set up as part of an estate plan. But what most people don’t really understand or want to consider is that the real benefit to having a revocable trust happens after death. After the death of the first spouse one spouse still remains. There is no longer a marital unit and any trusts you have must reflect that.

    A portion of the assets that are attributed to the deceased spouse must become irrevocable and a portion must stay revocable. This is where things get confusing, time consuming, and potentially very costly if the assets were not split into separate trusts while both spouses were alive. Ultimately, the surviving spouse will be stuck dealing with the mess and cost.

  • What are the disadvantages of my spouse and I have separate revocable trusts?

    Here are two disadvantages of having separate revocable trusts:

    • With separate revocable trusts, each spouse will have their own trust and would essentially be responsible for the management of their own trust.  But spouses can share this responsibility by making each other co-trustees of their respective trusts.
    • Formation and proper funding of separate revocable trusts require slightly more upfront cost and a bit more work to fund separately.

     

  • What Does Will Contest Mean In Estate Planning?

    What Does Will Contest Mean In Estate Planning?

    This does not determine who has the best Will, it is a process through which someone files a formal objection to a Will.  The objection could be for any number of reasons, but the objection must be filed with and heard by the probate court of the county where probate of the Will is taking place.

  • What Do Wills Mean In Estate Planning?

    What Do Wills Mean In Estate Planning?

    A written document that contains instructions for the disposal of assets at a person’s death.  This is filed and enforced through a probate process, sometimes involving the probate court.  Laws vary by state.
     

    Holographic Will

    A will that is partially or fully handwritten.  Not all states recognize holographic wills.
     

    Pour-over Will

    Used together with a revocable trust to “pour” any assets that were not in a decedent’s trust at the time of death over to the trust.

  • What Does Unified Credit, Estate Tax Exemption, Combined Estate and Gift Tax Exemption Mean In Estate Planning?

    What Does Unified Credit, Estate Tax Exemption, Combined Estate and Gift Tax Exemption Mean In Estate Planning?

    The amount each person is allowed to deduct from any federal estate tax that may be due after death or for gifts given during lifetime (above the annual gift tax exclusion amount).  In 2019 this amount is $11.4 Million.  Current rough calculations of American assets show that more than 99% will never pay an estate tax at these levels, especially with estate tax portability.
     

    What Is Estate Tax Portability?

    Estate Tax Portability can be used by a married couple to shield $22.8 Million dollars from federal estate and gift tax.

  • What Does Trustee Mean In Estate Planning?

    What Does Trustee Mean In Estate Planning?

    Person or institution that will manage assets, distribute assets and take care of administrative matters of the trust according to the terms of the document.

  • What Does Assigns Mean In Estate Planning?

    What Does Assigns Mean In Estate Planning?

    An institution specializing in the management of trusts.  Sometimes these are trusts of a specific family and other trust companies will manage any trusts.  There are lots of trust companies in South Dakota because of the favorable trust laws of the state.  They serve as a corporate trustee and can have roles ranging from specific to general.

  • What Does Successor Mean In Estate Planning?

    What Does Successor Mean In Estate Planning?

    Someone who follows. These people are named to serve in a position; executor/personal administrator, power of attorney, trustee etc. as a back-up if the first person named is unable or unwilling to serve. 

  • What Does Spendthrift Clause Mean In Estate Planning?

    What Does Spendthrift Clause Mean In Estate Planning?

    A clause added to a trust to protect assets in that trust from a beneficiary’s creditors.  This can include protection from a spouse in divorce.

  • What Does Required Minimum Distribution Mean In Estate Planning?

    What Does Required Minimum Distribution Mean In Estate Planning?

    The amount you are required to withdraw each year from a tax deferred retirement plan after you have reached the required beginning date (RBD).  This amount is determined across all of these accounts and is calculated by dividing the year-end value of all of these accounts by a life expectancy divisor provided by the IRS.  Although calculated across all of these accounts, you can take your total RMD from one account.