The Swier Law Firm Estate Planning and Probate Law FAQs

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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  • 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).

  • My grandmother recently passed away in Spearfish and I've been told that she died "testate." What does "testate" mean?


    In South Dakota, a person who dies with a will is said to have died "testate."

  • My grandfather lives in Brookings. In South Dakota, what happens if he passes away without a will?

    Under South Dakota law, if your grandfather passes away without a will he is:

    • Surrendering to the state of South Dakota the important decisions affecting the well-being and future security of his heirs
    • At risk of having his property divided in a way that's not to his liking
    • Foregoing any opportunities to reduce his taxes

  • I've just been appointed as Personal Representative of my uncle's estate in Madison. In South Dakota, can I be paid for my personal representative services?


    Yes.  Under South Dakota law, a Personal Representative is entitled to reasonable compensation for services.

  • What other estate planning documents should I have?


    Besides a last will and testament or trust, everyone should have a financial power of attorney, health care power of attorney, and a living will.  

    If you want to know more about all 4 of these essential documents, please see our book Estate Planning in South Dakota

  • What makes a “good” Last Will and Testament?


    A good Last Will and Testament is comprehensive, clearly-written, easy to administer, and has the capability to stand up in court and fulfill your wishes. 

    Poorly written, out-of-date wills can leave behind headaches that can take years (and a lot of money) to fix. Wills crafted by concerned, yet untrained, friends or websites can often rob a family of its rightful inheritance. Who hasn’t heard the stories where people have forgotten to change their wills to reflect changing family relationships and situations?

    Creating a valid and enforceable Last Will and Testament is not as easy as many people believe. If you expect your Last Will and Testament to do what you want it to do, you definitely need an attorney to help you. South Dakota's courts will not “guess” what you meant to write - they will read and interpret what is written according to the law . . . no matter the results.

  • 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.