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 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!

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

    No, this is actually a myth. 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!

  • What is a “retainer” and how is it determined?

     

    A "retainer fee" or “retainer,” is an amount of money paid before an attorney begins work. The amount is an estimate of the number of hours we think it will take our team to complete your case. Of course, this is much like attempting to summarize a book by reading its first few pages or reviewing a movie based on the previews - we do not fully know what we are in for until we are in it. Ethically, once an attorney represents you, he cannot stop representing you if it would unduly prejudice your interests. It is easier for a client to end representation at any time than it is for an attorney to do the same.

    To find out more about retainers, please read our article, Understanding Legal Fees: What Is A Retainer?

                           

  • South Dakota Estate Planning - Are You in the Same Boat as Tom Brokaw? (Part One)

    “Unfortunately, I don’t know a lot about my living will. In fact, I’m not even sure where it is at this point.”  - Tom Brokaw

    In a 2012 TED talk between Tom Brokaw and his daughter, Dr. Jennifer Brokaw, it was clear that some of Mr. Brokaw’s estate planning wishes weren't in as good of shape as he thought. “You know I have a living will,” he begins. But his daughter indicated that she knew nothing about his living will. The audience responds with laughter and applause while Mr. Brokaw chuckles and looks a little embarrassed. And in response, he comes clean and admits: “Unfortunately, I don’t know a lot about my living will. In fact, I’m not even sure where it is…”

    This exchange reveals volumes: an advance directive was created, but was not shared with relatives and is certainly not available in an emergency. Creating an advance directive is great - however, having an actual discussion with your family about your advance directive is needed to make sure your wishes are carried out.  

    So what is the solution? Read South Dakota Estate Planning - Are You in the Same Boat as Tom Brokaw? (Part Two).

  • What is a Qualified Domestic Relations Order?

     

    A Qualified Domestic Relations Order (QDRO) is an order which must be approved by the retirement plan administrator and which directs the plan administrator as to how and when you will receive your benefits.

  • In a South Dakota divorce, will I receive a share of my spouse’s retirement plan?

     

    The court can award you a share of your spouse’s retirement plan by a document called a Qualified Domestic Relations Order (QDRO). This is an order which must be approved by the retirement plan administrator and which directs the plan administrator as to how and when you will receive your benefits.

  • What is the difference between a defined benefit plan and a defined contribution plan?

     

    Think of a defined benefit plan as an annuity. Under this type of annuity there are payments that usually start at age 65 and are paid for the lifetime of the pension-holding spouse.

     

    The other type of plan is a defined contribution plan. Think of this type of plan as a “what you see is what you get” type plan and the pension holding spouse will receive a plan statement from the employer which will show an account balance.

     

    And complicated matters further, hybrid plans that can have aspects of both.  Further, there are plans provided by the State or Federal Government with unique features.

  • During my marriage I grew my retirement plan. In South Dakota, if I get divorced do I have to share it with my spouse?

     

    Generally yes. A retirement plan, to the extent it is earned during the marriage, is marital property. There are two ways to consider the value of the plan. One party can be awarded an interest in the plan and the other can be awarded property with a value that offsets the value of the pension plan. Otherwise, the parties can divide the interest in a pension plan through a document that is called a Qualified Domestic Relations Order (QDRO).