The Swier Law Firm Estate Planning and Probate Law FAQs

No. Actually, there are several other ways to avoid probate. For example, if you own assets in a "joint tenancy" with one or more others, those assets will pass by law to the survivor(s) when you die, and will not pass under probate.

However, you should be careful before creating a joint account, because the joint tenant will have rights in the joint property as soon as you create the account. Payable-on-Death (POD) bank accounts and other assets that are payable to designated beneficiaries such as proceeds from life insurance policies or pension benefits will also avoid probate. Transfer-on-death (TOD) designations for real estate, securities and motor vehicles also avoid probate. 

Medicare is a health insurance program for persons age 65 or older, or who have received Social Security disability benefits for 24 consecutive months or longer.

Medicare consists of Part A, which is hospitalization insurance, covering hospital care, home health care, skilled nursing care, and hospice care; and Part B, which covers the services of doctors, hospital out-patient care, durable medical equipment, routine mammograms for the early detection of breast cancers, and some other non-institutional medical services.

Not necessarily.

Disgruntled heirs or beneficiaries can challenge the validity of a revocable trust on the same legal grounds as those available for challenging a will. It may be claimed that a revocable trust is invalid because the grantor was incompetent or unduly influenced by another person to establish the trust.   

When a South Dakota resident dies owning probate property, a legal proceeding is commenced (1) to determine the last valid will of the decedent (if any); (2) to determine the nature, extent and value of the decedent’s assets that are subject to probate; (3) to organize the valid debts of the decedent; and (4) to establish the distribution plan of the assets to the heirs or beneficiaries. This proceeding is known as probate.

A trust exists when one person (called the grantor) gives property to another person (called the trustee) to hold and manage for one or more other persons (called the beneficiaries). Under South Dakota law, a revocable trust (also known as a “living trust”) is a trust that the grantor can amend (change) or revoke (cancel) during his lifetime.

Through the revocable trust, the grantor keeps all the benefits of any property placed into it for the rest of his life. The grantor also can be the trustee. The grantor’s spouse or a trust company also can serve as trustee. A revocable trust can be funded with any property such as checking accounts, savings accounts, brokerage accounts, stocks and bonds, a home and other real estate.

Some revocable trusts may not be funded initially, but rather at a later time or at the grantor’s death. The terms of a trust are described in writing in a document often called the declaration of trust or trust agreement. This document is signed by both the grantor and the trustee. 

A testamentary trust is established under a person’s Last Will and Testament and becomes effective upon the person’s death.

A trust is called a "Living Trust" if it is a trust established between a trustor and a trustee while the trustor is still alive.  

 

In a 2012 TED talk between Tom Brokaw and his daughter, Dr. Jennifer Brokaw, it was clear that Mr. Brokaw’s wishes aren’t exactly as in order as he had thought. “You know I have a living will,” he begins. But "unfortunately, I don’t know a lot about my living will. In fact, I’m not even sure where it is…”

So what is the solution?

• Immediate Access to Advance Directives. Of course, copies of your advance directive documents (living will and powers of attorney) should be shared with your family and doctors. However, when an emergency occurs, the last thing on the minds of you or your family are legal documents. The solution - store them and make them available electronically. With electronic access, your documents can be available to your family and the hospital from a website, text, or email. 
• Make Sure You Visit With Your Family. Your family may ultimately be in a position to make sure your wishes are carried out. Have a good conversation with them about your wishes. 

Don't just draft your advance directive documents and "let them sit." Take a few extra steps to make sure the documents you prepare are available to you, your doctors, and your family.

An irrevocable trust is a trust that the grantor creates to hold property where the trust instrument may not be revoked or changed. Under this type of trust, the grantor gives up all right, title, and interest to the assets held in the trust, and gives up any right to terminate the trust. The property may be held by the trust and used for the benefit of the named beneficiaries or other interests defined by the trust instrument. When a grantor funds an irrevocable trust and is neither a trustee nor a beneficiary of the trust, he forfeits all right to that property. 

In South Dakota, a revocable living trust often addresses three separate phases of a grantor’s life. First, the trust may state that while the grantor is alive and doing well, he will serve as trustee and manage trust assets for his own benefit. Second, if the grantor becomes ill or injured to the point that he cannot manage his finances, the trust identifies who will take over as trustee and directs the successor trustee how to manage trust assets. Third, the trust directs the successor trustee how to distribute remaining trust assets after the grantor dies. As long as the grantor understands the nature and consequences of his actions, he can cancel or change the revocable living trust.