The Swier Law Firm Estate Planning and Probate Law FAQs
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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Do I really need an estate plan?
You already have an estate plan. In fact, even if you don’t know it, you have already made many estate planning decisions. For example, choosing to have a will or not have a will is an estate plan. How you have titled your property is an estate plan. Naming a beneficiary for your life insurance, retirement plan, or 401(k) is an estate plan. Therefore, you may as well take control of your estate plan by understanding what you are doing.
Our law firm is often asked, “What happens if I die without a will?” The answer is that you will have made very significant (and likely unwise) estate planning decisions. If you die without a will, South Dakota law dictates who gets your property. These laws are known as the laws of intestate succession.
In other words, if you die without a will, the State of South Dakota has written a will for you. For example, the State also determines who gets your property, who will manage your estate, and who will serve as guardian of your minor children. Often, the State’s laws in these areas do not reflect what you would have really wanted.
The persons who take your property under South Dakota’s intestate succession laws are known as your heirs. Depending on the circumstances, these laws may divide your property among your spouse, children, parents, brothers, sisters, aunts, uncles, grandparents, or other relatives. Unfortunately, it is likely that your wishes would have been completely different from the estate plan that the State of South Dakota has written for you.
One excuse many people give for not writing a will is that they think wills are only for “rich people.” However, even small estates must go through the probate process. Other people believe that a will is simply too expensive. However, a will that is carefully considered and precisely written actually pays for itself and provides you with peace of mind.
Do I have to wait to meet with an estate planning attorney until I decide if I want a will or a trust?
Absolutely not. Your attorney should be a key player in helping you determine what the best fit is for you and your loved ones. After your attorney learns more about you and your goals, your attorney will be able to review the advantages and disadvantages of a will or a trust based on your individual circumstances. This gives you guidance on the right fit for you far above the level of specificity Google can provide.
My financial advisor told me I do not need an estate plan if I use beneficiary designations on all of my accounts. Is this true?
This depends highly on your goals and net worth and is almost never the right choice unless you have very few assets (under $50,000, you have no debts, and your goals align with a simple distribution). Without a cohesive estate plan, your family is often left picking up the pieces and trying to make sense of the mess you left behind. Your financial advisor is likely thinking solely about avoiding probate. However, the goal in good estate planning is more than just avoiding probate. Assets with beneficiary designations (outside of your trust) pass to those individuals upon your death without going through the probate process. However, by bypassing your estate, your loved ones may not have the assets or liquidity needed to pay your final expenses. Further, the assets received by your beneficiaries through these designations are subject to creditors and divorce. Using beneficiary designations as a substitute to creating an estate plan almost always results in greater tax and liability exposure for you and your loved ones.
I consider myself pretty intelligent and am savvy on a computer. Can’t I just save some time and complete my estate plan online?
Do it yourself estate plans DO NOT WORK. Period. Would you tell your patient to give themselves a physical? Or to just look at that mole and compare it with pictures online to determine themselves if it is cancerous? There are many different considerations qualified estate planning attorneys make with drafting your documents. It is not a simple “fill in the blank” process. With the advent of the digital age, DIY wills and trusts are becoming one of the most highly litigated areas of the law. Don’t leave yourself or your loved ones unprotected and subject to expensive litigation. Taking the time now to complete your estate plan will save your loved ones considerable time, expense, and chaos down the road. Plus, it will ensure you leave a lasting legacy for your loved ones.
My attorney recommended I place certain assets in my trust. I don’t feel like I have the time to do this as I have three small children and am busy. What would you recommend?
If you do not take the time to transfer your assets as recommended by your attorney, your trust will not operate as you intend. This may result in your assets going through probate or to individuals in an unprotected manner. It is crucial to take the time to fund your trust. Many attorneys will assist you with this process if needed. Generally, there are additional fees for such services and you may still need to communicate with your financial institutions directly before they will work with your attorney on your behalf.
I recently signed a revocable living trust. Does this revocable trust protect my assets from a nursing home spend down?
No. This is a very common misconception. There are several reasons to have a living (revocable) trust. However, asset protection planning and nursing home protection are not reasons to have a revocable trust. Under federal Medicaid law and under most states laws, your revocable trust is considered your asset and must be "spent down" before you qualify for long term care in a nursing home. Also, because your revocable trust is your asset, it can also be reached by your creditors if you get sued.
What Are The New Opportunities For Estate Planning Under The Tax Cuts And Jobs Act?
The most sweeping tax reform in 30 years was just passed by the House and Senate and signed into law by President Trump. What does the new law mean for estate planning?
New Opportunities Of Course!
Do I need to put my wishes for my funeral or memorial services in my will in South Dakota?
With the mounting cost of funerals and memorial services, it’s become more common for people to include instructions for post-death events with their final arrangements documents and wills. These documents give you a way to state your final wishes for how you want to be remembered when you pass. While this addition to your final arrangement documents is not necessary, it can help your family know specifically what your wishes are beyond the basics of your estate planning in South Dakota.
In a final arrangement document or will in South Dakota, you can leave a portion of your South Dakota estate to help pay for your funeral. This will allow you to specify what you want after you pass. Some of the common questions people answer in this portion of their will are:
- Where you want to be buried?
- Whom you want to officiate at the service?
- What pictures you want to have displayed?
- What type of ceremony do you want to have?
- What are your preferences for location, décor, or music at the ceremony?
There are a number of items that you can specify to make your funeral truly be a celebration of your life. At the same time, giving clear and specific instructions will also help reduce any controversy among your family members, or disputes on how you would have wanted your funeral and who will pay for your funeral.
As you sit down with your South Dakota estate planning attorney, let him know that you want to add this section into your will. This way, you can be sure that your wishes will be met and that you are doing your part to help your family avoid disputes so that they can grieve together.
In South Dakota, can I disinherit my child?
Yes. If you have children, you are not required to leave them any portion of your estate. A common misunderstanding is that you must leave each child at least one dollar. Today, your Will may simply state, “I have intentionally failed to provide for my son, James.”
In South Dakota, can I disinherit my husband?
No. In South Dakota, married persons may not completely disinherit their surviving spouse, unless the spouse agrees. While it is true that you may dispose of your property in almost any way you wish through your Will, there are some restrictions. Depending on how your Will provides for your surviving spouse, the surviving spouse may choose to take an “elective share” in lieu of the provision made in the Will. The amount of this “elective share” is determined by the length of the marriage.