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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 will and what does it do for you?

    A will directs how you want your property to be distributed when you die.  In South Dakota, anyone who is at least eighteen years old and of sound mind can make a will.  A will does not take effect until you die.  Also, as long as you are of sound mind, you can change your will as often as you want. 

    In South Dakota, a will always needs to be in writing.  A will written in your own handwriting is called a holographic will.  South Dakota will recognize this type of will under certain circumstances.  However, our law firm does not recommend that you write your own will.  These wills are frequently unclear, incomplete, and poorly written.  A better option is a will that is properly witnessed, known as an attested will.  An attested will, with a special notarized affidavit, is a self-proving willOur law firm recommends that you have a properly written, attested, and self-proving will.   

    Your will can do many things.  First, your will can direct how your property will be distributed after you die.  Second, you get to name the persons that will take your property, known as the beneficiaries.  Third, you can provide for several contingencies because you do not know who will be living at the time of your death.

    Here’s an example:  Presume that you are married and have five children.  You probably want to leave everything to your spouse.  However, if your spouse dies before you do, then you could leave everything to your five children.  You could also decide what would happen if one of your five children dies before you.  Do you want that deceased child’s share to go to your remaining children or to your child’s spouse or children (your grandchildren)?  What happens if you have no surviving spouse or children – is there a charitable organization that you want to honor through your will? 

    Another benefit of a will is that you get to choose your personal representative.  The personal representative is the person who manages your estate.  Under South Dakota law, your personal representative has four main duties: (1) to gather your assets, (2) to protect your assets, (3) to pay your debts and expenses (including any taxes), and (4) to distribute the remaining assets to your beneficiaries.  

    You may name more than one person to serve as the personal representative.  These persons are called co-personal representatives.  This structure may work in some cases.  However, because both co-personal representatives often have to agree on all decisions (and sign everything) it may create more problems than it is worth.  You should definitely discuss this co-personal representatives issue with your attorney.

    For young families, another important benefit of having a will is that you can name the person you want to serve as the guardian of your minor children.  For the parents, this is often the most difficult estate planning decision to make.  The guardian is the person you designate to raise your minor children until their eighteenth birthdays.  South Dakota courts will normally follow your will’s guardianship wishes.  

    A will also allows you to establish a trust and name a trustee.  A trust is a legal arrangement that divides ownership of property into two parts: legal ownership and beneficial ownership.  The trustee is the person who holds the legal ownership of the property.  The trustee controls and manages your property according to your instructions for the benefit of your beneficiaries, who hold the beneficial title to the same property.

    Here’s an example of how a trust could work:  Presume that your will leaves everything to your spouse.  In the event that your spouse dies before you do, your will leaves everything to your five minor children.  Because your five children are minors, the state Circuit Court will need to appoint a guardian to manage your children’s finances.  Under South Dakota law, the guardian may be required to file a financial accounting with the state Circuit Court.  Sometimes, the guardian must get the state Circuit Court’s permission to spend money for the children.  Perhaps most alarming is that as soon as your minor child turns eighteen, the child receives his estate share outright.  Of course, most eighteen year-olds are not mature enough to handle this kind of major financial responsibility.

    A trust, however, allows you to designate whether or not the trustee must post a bond or file accountings with the state Circuit Court.  You can also grant the trustee discretion as to how to spend or invest the trust assets and designate the age that the trustee can provide the property to your children.  For example, you might postpone distribution until at least age thirty, or sometimes half at age thirty and half at forty.  In other words, your trustee can make sure that the funds are used sensibly, such as to pay for a child’s college education, before your trustee has to turn the property over to the child.

  • What is your "estate"?

    Many people believe that the term “estate” only applies to the wealthy.  However, in reality, almost everyone has an “estate.”  Your estate is all of your property – your home, real estate, savings, bank accounts, life insurance policies, furniture, retirement plans, personal property and everything else you own.  In other words, if you own property, you have an estate.

    Your entire estate is made up of your probate estate and your non-probate estate.  If you die with a will, you have died testate. If you die without a will, you have died intestate

    In South Dakota, probate is the process of proving a will’s validity before the state circuit court.  Probate is done so that your assets can be properly administered and distributed.  You should keep in mind that even if you die intestate (without a will), your assets still need to be administered and distributed through probate.  

    The assets that go through probate make up your probate estate.  These are usually assets that are titled solely in your name and come under the control of your personal representative (formerly known as an executor)For instance, real estate, stocks and bonds, bank accounts, and vehicles are part of your probate estate if they are titled only in your name.  

    On the other hand, when you die, some of the assets that you own may be distributed to others without regard to your will and outside of the probate process.  These assets pass directly by operation of law or by contract and make up your non-probate estate.  For example, an asset that you own jointly with another person (such as real estate or a bank account) may pass directly to the surviving joint owner upon your death by special legal rules.

    Other types of non-probate assets, such as life insurance or retirement accounts, allow you to designate a beneficiary.  These assets will then be distributed to your beneficiary when you die.  In other words, some of your assets may not be controlled by your will or the probate process.

  • What is negligence in South Dakota?

    Negligence is the legal term for any careless behavior that causes, or contributes to, an accident.  For example, a person is negligent if he neglected to stop at a stop sign and, as a result, hit your car as you were coming through the intersection.

    A person can be considered negligent whenever he or she had a duty to act carefully and failed to do so. (Generally, we all have an obligation to act with ordinary and reasonable care in any given situation -- that is, in a manner that will not foreseeably injure those around us).  For example, a person who drove at night wearing sunglasses would be negligent, because any reasonable driver would know that doing so would increase the chances of causing a traffic accident.

    For most types of accidents, a person must be found negligent in order to be held legally responsible for another person's injuries. If a person behaves negligently and that behavior causes you harm, you can most likely recover compensation for your injuries.

  • What determines who is at fault in a car, truck, motorcycle, or bicycle accident?

    Determining who is at fault in a traffic accident is a matter of deciding who was careless.  For South Dakota vehicle accidents, there is a set of official written rules telling people how they are supposed to drive and providing guidelines by which liability may be measured.  These "rules of the road" are the traffic laws everyone must learn to pass the driver's license test.  Complete rules are contained in South Dakota's vehicle code, and they apply not only to automobiles but also to motorcycles, bicycles, and pedestrians.

    Sometimes a violation of one of these traffic rules is obvious and was clearly the cause of an accident -- for example, when one driver runs a stop sign and crashes into another.

    In other situations, whether or not there was a violation will be less obvious -- a common example is a crash that occurs when drivers both merge into a single lane of traffic.  These cases may be governed by the law of negligence. A driver, pedestrian, or cyclist who is "negligent" (that is, behaved in a thoughtless or careless manner) will be found at least partially at fault for causing the accident.

  • What should I do if I'm involved in a traffic accident?

    Take notes!

    One of the most important steps you can take is to document the entire situation by taking careful notes soon after your accident.  This single step can help make the entire claims process easier on you -- and increase your chances of receiving the compensation to which you are entitled.  Keeping notes to remind you of all the details of what happened, and what you went through, is much easier and more accurate than relying on your memory.

    Write things down as soon as you can: Start with what you were doing and where you were going, the people you were with, the time, and the weather.  Include every detail of what you saw, heard, and felt.  Be sure to add anything you remember hearing anyone -- a person involved in the accident or a witness -- say about the accident.

    Finally, make daily notes of the effects of your injuries. You may suffer pain, discomfort, anxiety, loss of sleep, or other problems which are not as visible or serious as another injury, but for which you may be entitled to further compensation.

  • How long does probate take in South Dakota?

    The answer varies for each estate. The most important factors are often how many personal representatives and beneficiaries are involved and what type of assets does the estate hold?  The more personal representatives and beneficiaries, the more likely there is to be a dispute and or a lengthy court process. Generally, most probates that our law firm helps to administer are closed within 6 to 12 months. 

  • Who has to pay federal estate tax?

    Once you're worth more than a certain amount, taxes "shrink" your estate.  Under the 2010 tax law, you can transfer up to $5 million tax-free during your life or at death.  This figure, called the basic exclusion amount, is also adjusted for inflation.  In 2012, this amount was raised to $5.12 million per person.  The new tax law does not change how much you can pass tax-free. On Jan. 11, 2013, the IRS announced that, with the inflation adjustment, the estate tax exclusion amount for deaths in 2013 would be $5.25 million. 

  • What is a trust in South Dakota?

    A trust agreement in South Dakota is a document that sets out the rules that you want followed for property held in trust for your beneficiaries. Common objectives for creating trusts are to reduce the estate tax liability, to avoid probate, and to protect property in your estate.

    Think of a trust as a special box in which ordinary property from your estate goes in and, as the result of some type of transformation that occurs, takes on a new identity and often is bestowed with super powers: immunity from estate taxes, resistance to probate, and so on.

    Suppose that you want to set up a trust. Just like with a baking recipe, you need to make sure you have everything you need before you start. To create up a trust, you need these basic ingredients:

    • Person setting up the trust. The person is commonly known as the trustor, though you may sometimes see the terms settlor or grantor.

    • Objective of the trust. You use different types of trusts to achieve a variety of specific estate-planning objectives. You can use some trusts for a single estate-planning objective, while others help you achieve more than one goal.

    • Specific kind of trust. Trusts come in many different varieties. Regardless, when you’re setting up a trust, you need to decide what type of trust you want and make sure that you follow all the rules for that particular type of trust to make sure that it’s proper and legal, and carries out your intentions.

    • Property. After you place property into a trust, that property is formally known as trust property.

    • Beneficiary. Just like with other aspects of your estate plan (your will, for example), a trust’s beneficiary (or, if more than one, beneficiaries) benefits from the trust in some way, usually because the person or institution will eventually receive some or all of the property that was placed into trust.

    • Trustee. The person in charge of the trust is known as the trustee. The trustee needs to understand the rules for the type of trust he is managing to make sure everything in the trust stays in working order.

    • Rules. Finally, some of the rules that must be followed are inherently part of the type of trust used, while other rules depend on what is specified in the trust agreement.

  • Does a wife have to pay the federal estate tax when she inherits from her husband?

    No, there is an unlimited deduction from federal estate and gift tax that postpones the tax on assets inherited from one spouse until the second spouse dies.  However, this marital deduction applies only if the inheriting spouse is a United States citizen.

  • I did not think I had any injuries, but now I’m starting to feel pain after my South Dakota car wreck. What should I do?

    When you have been involved in a car accident in South Dakota, you are filled with adrenaline at the scene of the collision after a terrifying experience. This adrenaline has been known to mask the pain of some injuries from car accidents in South Dakota. In fact, many people think that they are fine, but days later find that they are in pain and unable to carry out daily activities as they once did. When this happens, it is important that you do a few things to help your claim and get the compensation you deserve for your injuries.

    Here are a few steps you must take.

    • Seek medical care. The faster you get into the doctor to get your pain and injuries checked out, the better. This will provide you relief from your symptoms faster and show the insurance company that it did not take long for your injuries to appear.
    • Be honest with your doctor and get documentation. You should tell your doctor right away that you were involved in a South Dakota auto accident. This will help the doctor know how to document your injuries so that you can submit his report to the insurance company.
    • Get representation. Because did not seek medical attention immediately after the accident, you may need to get legal representation on your side if you hope to get the insurance company to pay your medical bills. Contact a car accident attorney in South Dakota for help in understanding the next steps you must take in your insurance claim.

    For help with your injuries, get medical attention first, and then put an auto accident lawyer in South Dakota on your side. Call Swier Law Firm today to schedule a consultation with an attorney about your case.