Get Answers to Your Highest Priority South Dakota Legal Questions

The State of South Dakota is required to provide "active efforts" to families, and the court will be asked to determine whether "active efforts" have been made.  The exact definition of "active efforts" is left open under ICWA to accommodate individual case decisions.  (However, federal guidelines do exist - Federal Register, Vol. 44, No. 228, Monday, November 26, 1979).

ICWA mandates that South Dakota make "active efforts" in two areas:

1. Provide services to the family to prevent removal of an Indian child from his or her parent or Indian custodian
2. Reunify an Indian child with his or her parent or Indian custodian after removal.

A fundamental consideration in applying "active efforts" is active and early participation and consultation with the child's tribe in all case planning decisions.  Also, "active efforts" is more than just "reasonable efforts."  For example, reasonable efforts might be only a referral for services, but "active efforts" would be to arrange for the best-fitting services and help families engage in those services.

ICWA applies to three types of Indian child custody proceedings.

Types of Indian Child Custody Proceedings

Foster care placements.

ICWA applies to the temporary removal of an Indian child from his or her home, for placement in a foster home or institution, when the parent or Indian custodian (defined as an Indian person with custody of the child under tribal or state law or who has the child pursuant to a parental placement) cannot regain custody upon demand (25 U.S.C. 1903(1)). The latter provision exempts ICWA application from voluntary religious or school placements, as well as voluntary placements with private or public agencies where the parent or custodian can regain custody at any time. However, ICWA would apply to a guardianship in which a child is placed with a nonparent, as this fits the definition of a foster care placement.

Termination of certain parental rights.

ICWA applies to any proceeding that may result in the termination of the parental rights of the Indian child's parents or the custodial rights of the child's Indian custodian, including stepparent adoption proceedings and delinquency proceedings that lead to an attempt to terminate parental rights. (These generally are not governed by ICWA.)

Pre-adoption placements and adoption placements.

ICWA applies to proceedings that lead up to and culminate in the adoption of an Indian child. It imposes an obligation on both public and private adoption agencies to comply with its provisions.

Any property or assets given as a gift (including money) are subject to the federal gift tax.  However, there are numerous exceptions.  Here are some ways you can transfer assets without incurring gift taxes:

• Give an unlimited number of people gifts up to $14,000 each per year ($28,000 if you're married). These gifts are called annual exclusion gifts.
• Pay any amount toward another person's tuition or medical expenses, as long as you pay these amounts directly to the school or medical provider.
• Give any amount to your spouse.
• Give any amount to charity.

If you make contributions to a Section 529 college savings plan or prepaid tuition plan on behalf of another person, you can contribute up to five years of annual exclusion gifts, or $70,000, in a single year ($140,000 if you're married), provided that you make the proper election on a timely filed gift tax return.  If the election is made, then any additional gifts over the annual exclusion amount to that individual during the five-year period will be subject to gift tax.  If you die before the end of the five-year period, a prorated portion of your gift will be subject to estate tax.

Even if you make a taxable gift, you don't have to pay tax until you exhaust your gift tax exemption amount.  This exemption currently allows for $5.25 million of taxable gifts to be made during your lifetime before a tax payment is required.

You should always consult with your tax advisor so that your overall circumstances can be taken into consideration and that you're properly reporting the gifts.

Source:  The Vanguard Group, Inc.

Under current law, the amount of assets you can pass after your death without incurring estate tax (known as the estate tax exemption amount) varies depending upon the year of your death.

Estate tax exemption amounts

Calendar year	Estate tax exemption
2005	$1,500,000
2006	$2,000,000
2007	$2,000,000
2008	$2,000,000
2009	$3,500,000
2010	$5,000,000
2011	$5,000,000*
2012	$5,120,000*
2013	$5,250,000*

* This amount will be adjusted for inflation annually.

The estate tax exemption amount is reduced dollar-for-dollar if you've used all or part of the $5.25 million gift tax exemption during your lifetime.

Keep in mind that South Dakota does not impose an estate or inheritance tax. 

Source:  The Vanguard Group, Inc.

There are many good reasons for setting up a trust while you're alive.  These trusts are commonly referred to as living trusts or revocable trusts and are often established because:

• You want to ensure a more seamless management of your assets in the event you become incapacitated or otherwise unable to manage your financial care.
• You own property in more than one state, so that your will would have to be probated in each of those states.
• You want to avoid South Dakota's probate process.
• You'd like to better ensure that your estate plan is kept private and not made a matter of public record.

Source:  The Vanguard Group, Inc.

There are many good reasons for having a trust created upon your death.  These trusts may be created through a will or a living trust:

• You have a minor child or children with special needs or other diabilities who can't financially care for themselves.
• You have concerns that your beneficiary may not be able to effectively manage the inherited assets.
• You'd like to protect the assets from any future creditors a beneficiary may have.
• You want to provide a structure around when, under what circumstances, and for what purposes your beneficiary should receive assets.
• You'd like to minimize the amount of estate taxes that might have to be paid at the death of the beneficiary through generational tax planning.
• You want to ensure that the trust assets eventually go to specified beneficiaries, whether those are individuals or charities.

Source:  The Vanguard Group, Inc.

A trustees is responsible for many things, including investing and managing the trust's assets, distributing the assets in accordance with the terms of the trust, keeping accurate records, and filing all necessary tax returns.  Your trustee should be a person or financial institution that you trust.  Keep in mind that you can have co-trustees, and if necessary, your trustee can hire expertise (like investment, legal, and/or tax advice) to assist in performing their fiduciary duty.

Prioritize your goals and objectives when thinking about who your trustee should be.  For example, is it important that your trustee understand you and your family members/beneficiaries in a personal way?  If so, having a close family member or friend serve as an individual trustee may be important.  Is an objective trustee important when decisions are made about how and when assets are to be distributed?  If so, a corporate trustee or an independent individual trustee may be appropriate.

Choosing a trustee isn't always easy.  If you're naming individuals, be sure to speak with them ahead of time to help ensure that they're comfortable with the responsibilities you are asking them to undertake.  If you're using an independent trustee, especially in the case of corporate trustees, make sure you understand their investment philosophy, fee structures, and method for reviewing and deciding upon distribution requests from a beneficiary.

Source:  The Vanguard Group, Inc.

Yes.  South Dakota has adopted the Uniform Enforcement of Foreign Judgments Act.

Under South Dakota law, no action may be brought against a licensed real estate broker, broker associate, or salesperson, or any agent or employee thereof, for malpractice, error, mistake, or omission, whether based upon contract or tort, unless it is commenced within three years of the occurrence of the alleged malpractice, error, mistake, or omission.

Under South Dakota law, a "Summons" requires you to answer the "Complaint" and serve a copy of your answer within thirty days after the service of the summons (not including the day of service).