The Swier Law Firm Estate Planning and Probate Law FAQs

When a grantor creates a South Dakota trust, the grantor creates a separate legal entity. After creating the trust by signing a legal document, the grantor transfers ownership of assets from the grantor’s name to the trust’s name. If the asset is real property, the grantor signs a deed conveying the real property to the trust. If the asset is a bank account, the grantor changes the owner of the account to the trust. If the asset is personal property, the grantor signs an assignment of the personal property to the trust. The duty of the trustee is to administer the trust’s assets in accordance with the terms of the trust, for the benefit of the trust beneficiary.  

A person may create a South Dakota trust for several reasons. For instance, a person who creates a revocable living trust may do so because it allows him to avoid probate. The parents of minor children may create a trust in their wills, so that if the parents die while their children are still young, the children’s inheritance will be placed in trust until the children are old enough to manage the assets themselves. These are just some of the many reasons for creating a trust in South Dakota.

 

No. Creating a Power of Attorney or Living Will won’t affect your insurance or governmental benefits.

Most experts agree that a Durable Power of Attorney for Health Care is a better option than a Living Will. The Durable Power of Attorney for Health Care can do everything that a Living Will can do and may include a statement of your wishes on the subject of life-sustaining treatment.

A Durable Power of Attorney for Health Care has advantages which the Living Will does not. For example, with a Durable Power of Attorney for Health Care, your agent can actively remind your physician of your wishes, something that a written document, like a Living Will, cannot do alone. Also, a Living Will only contains directions as to when and whether you want life-sustaining treatment, and it goes into effect only after your attending physician and one other physician have diagnosed you as terminally ill or permanently unconscious. 

In other words, a Living Will does not address the numerous other health care decisions that must be made if you become incapable of making your own decisions. A Durable Power of Attorney for Health Care, on the other hand, can authorize your agent to make “all” health care decisions. Therefore, a Durable Power of Attorney for Health Care is more comprehensive and flexible than a Living Will. 

You need to think carefully about who knows you best and will best be able to “stand in your shoes” for legal matters. For many people, this will be a spouse or a child, but you can choose anyone, including a friend. You should also consider where the person lives and whether that person will be available when legal decisions need to be made for you. Finally, you should consider naming a second person to act as a successor agent in the event that your first choice is unavailable or is unwilling to make the decision.

If you do not create a Power of Attorney and later become incapacitated, no one may gain access to your assets or make other important medical, financial, or legal decisions for you without going through the process of declaring you incompetent and establishing a court-appointed guardianship. The simple process of completing a well-drafted and thorough Power of Attorney solves these problems.

In South Dakota, a person can challenge your will by attempting to prove in court that:

• you were under duress or undue influence when making your will;
• you were incompetent or unable to understand the results of your will when writing it; or
• your will does not meet the requirements that make it valid under South Dakota law.

 

Under most circumstances, you should not give a copy of your will to your Personal Representative, children, or anyone else who might have an interest in your estate. You never know what the future may hold, and you may want to change your will. You also do not want “old” copies of your will floating around because this could cause future confusion and hard feelings. Our law firm does recommend that you tell your Personal Representative where your original will is located.  

Yes. Your South Dakota will is in effect until it is changed or revoked. You may do this as often as you wish as long as you are legally competent to do so. In fact, it is recommended that you review your will every two to four years. You should also review your will if you have a change in tax laws, family circumstances, or in the amount and the kind of property you own. Of course, any change to your will requires a careful analysis to make sure that it reflects your wishes.

No. In South Dakota, you only need to mention specific property in your will if you want to make a “specific bequest.” A specific bequest is when you leave certain property to a beneficiary in your will, such as a piece of jewelry, a family heirloom, or cash. While you may have a few specific bequests, most people leave the large majority of their estate to beneficiaries by percentages or fractions in their residuary (remaining) estate.