The Swier Law Firm Estate Planning and Probate Law FAQs

Yes. In South Dakota, you may name more than one person to serve as the personal representative. These persons are called co-personal representatives. This structure may work in some cases. However, because both co-personal representatives often have to agree on all decisions (and sign everything) it may create more problems than it is worth. You should definitely discuss this co-personal representatives issue with your attorney.

Another benefit of a will is that you get to choose your personal representative. The personal representative is the person who manages your estate. Under South Dakota law, your personal representative has four main duties: (1) to gather your assets, (2) to protect your assets, (3) to pay your debts and expenses (including any taxes), and (4) to distribute the remaining assets to your beneficiaries.  

Your South Dakota will can do many things. First, your will can direct how your property will be distributed after you die. Second, you get to name the persons that will take your property, known as the beneficiaries. Third, you can provide for several contingencies because you do not know who will be living at the time of your death.

Yes. In South Dakota, a will always needs to be in writing. A will written in your own handwriting is called a holographic will. South Dakota will recognize this type of will under certain circumstances. However, our law firm does not recommend that you write your own will. These wills are frequently unclear, incomplete, and poorly written. A better option is a will that is properly witnessed, known as an attested will. An attested will, with a special notarized affidavit, is a self-proving will. Our law firm recommends that you have a properly written, attested, and self-proving will.   

In South Dakota, anyone who is at least eighteen years old and of sound mind can make a will.

A will directs how you want your property to be distributed when you die. In South Dakota, anyone who is at least eighteen years old and of sound mind can make a will. A will does not take effect until you die. Also, as long as you are of sound mind, you can change your will as often as you want.  

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. 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.    

Even if you don't know it, you already have an estate plan. 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.
 

No. In South Dakota, not all your property may have to go through probate. The assets that do go through probate make up your probate estate. These are usually assets that are titled solely in your name and come under the control of your personal representative (formerly known as an executor). For instance, real estate, stocks and bonds, bank accounts, and vehicles are part of your probate estate if they are titled only in your name.  

On the other hand, when you die, some of the assets that you own may be distributed to others without regard to your will and outside of the probate process. These assets pass directly by operation of law or by contract and make up your non-probate estate. For example, an asset that you own jointly with another person (such as real estate or a joint bank account) may pass directly to the surviving joint owner upon your death by special legal rules.

Other types of non-probate assets, such as life insurance or retirement accounts, allow you to designate a beneficiary. These assets will then be distributed to your beneficiary when you die. In other words, some of your assets may not be controlled by your will or the probate process.

In South Dakota, probate is the process of proving a will’s validity before the state circuit court. Probate is done so that your assets can be properly administered and distributed. You should keep in mind that even if you die intestate (without a will), your assets still need to be administered and distributed through probate.