The Swier Law Firm Estate Planning and Probate Law FAQs

 

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

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

 

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

 

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Poorly written, out-of-date wills can leave behind headaches that can take years (and a lot of money) to fix.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.

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.  

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.

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.

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.

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.

 

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.