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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  • Is A Safe Deposit Box A Good Place For My Original Will?

     

    Safe deposit boxes have been the go-to for generations for the safekeeping of important documents and property. Safe deposit boxes truly are a great place to keep many important and valuable things. But when it comes to choosing a place to keep your original Will, your safe deposit box is the worst choice.

    When a person dies, the bank will freeze that safe deposit box until a person has been appointed as personal representative of the estate. If you have a Will, that original Will must be produced and filed with the state for someone to be appointed as personal representative. This could potentially turn into a time-consuming, confusing and expensive Catch-22 situation. The original Will is needed for a personal representative to be appointed, but a personal representative must be appointed to get the original Will from the safe deposit box.

    If you choose to take your original Will after signing, pick a safe location to keep it, other than your safe deposit box, and make sure others know where it is and how to access it when you are gone. A better alternative is to let your attorney keep your original Will. Most attorneys who draft Wills will offer this service. Our office will safeguard your Will free of charge - just let your family know we have it.

  • Can Inherited Property Be Considered Marital Property In A South Dakota Divorce?

    Yes. In South Dakota, inherited property of one spouse can be considered marital property in a divorce.

  • Where Can I Find South Dakota's Child Support Calculator?

    South Dakota's Child Support Calculator can be found by clicking here.

  • What Are South Dakota's Divorce Residency Requirements?

    To receive a divorce in South Dakota, no length of residency or waiting period before beginning the action is required. However, you must be a resident in good faith and once the proceeding is started you must remain a resident of the state until the divorce is final.

  • What is South Dakota's Parental Relocation Law?

    Under South Dakota's Parental Relocation Law, if an existing custody order or other enforceable agreement does not expressly govern the relocation of the principal residence of a child, a parent who intends to change his or her principal residence must provide reasonable written notice by certified mail or admission of service to the other legal parent of the child. Reasonable notice is notice that is given at least forty-five days before relocation or a shorter period if reasonable under the specific facts giving rise to the relocation. Proof of the notice shall be filed with the court of record unless notice is waived by the court.

    However, no notice needs to be provided if:

                 (1)      The relocation results in the child moving closer to the noncustodial parent; or

                 (2)      The relocation is within the boundaries of the child's current school district; or

                 (3)      There is an existing valid protection order in favor of the child or the custodial parent against the noncustodial parent; or

                 (4)      Within the preceding twelve months, the nonrelocating parent has been convicted of violation of a protection order, criminal assault, child abuse, or other domestic violence and either the child or the custodial parent was the victim of the crime or violation.

  • In a South Dakota child custody case, what does "parental fitness" mean?

    When a South Dakota court determines child custody, it focuses on what is in the best interests of the child.  In making this decision, one of the primary factors is looking at "parental fitness."  When evaluating "parental fitness" a South Dakota court may consider the following factors:

    (1) mental and physical health;

    (2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;

    (3) ability to give the child love, affection, guidance, education and to impart the family's religion or creed;

    (4) willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent;

    (5) commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and

    (6) exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen.

  • Can I Be Forced To Serve As An Executor or Trustee?

    Often people consider it an honor to be named as an executor, personal representative or trustee. But along with being named in one of these positions comes a lot of responsibility, liability, attention to detail, deadlines, phone calls, paperwork, and potential family drama. Just because the person who named you thought you would be the best person for the job does not mean you are forced to accept the position.

    If you have reservations about serving in these positions then don’t. If you are named in a will or trust and you don’t want to serve simply tell the court that you do not want to serve by filing a renunciation. The court will move on to whoever else may have been named next or if no one else was named, to whoever would have the right to serve in that position under state law. Filing a renunciation does not change anything about the actual estate. Everything in the will or trust will be administered and distributed exactly as written, including to you if you are to inherit. It just means that you have chosen to not be named to take on the responsibility and potential liabilities that go along with these roles.

  • Do I Have To Accept An Inheritance?

    You cannot be forced to accept an inheritance. As strange as that may seem, there are a number of reasons why a person may not want to accept property. This is most often used when all of the inheritance would go straight to creditors or if accepting the inheritance would significantly affect income tax status. A disclaimer can be used to not accept any type of inheritance, whether passing to you by will, state law, through a trust, from life insurance, financial accounts or real estate that pass by how they are titled.

    Disclaiming property means that the person using the disclaimer will be treated as though they died before the right to inherit happened. A few rules to follow: there is generally a time limit to disclaim (often 9 months), the disclaimer must be in writing and be done before there is any benefit from the inheritance, the disclaimer must cover the entire inheritance from one place (you can disclaim from the will but take life insurance) and you don’t get to say what happens to it. Be careful though, some jurisdictions do not allow disclaimers if you already have no money or are receiving public benefits based on low income.

  • Does the Indian Child Welfare Act apply to child custody cases in South Dakota?

    No. The Indian Child Welfare Act (ICWA) does not cover child custody cases which arise from a divorce or separation in South Dakota. ICWA only applies to termination of parental rights, foster care placement, and pre-adoptive or adoptive placements.   

  • How is child support established in South Dakota?

    In South Dakota, a child support obligation is established by using the combined monthly net incomes of both parents, divided proportionately between the parents based upon their respective net incomes.  The noncustodial parent's proportionate share then establishes the amount of the child support order.