The Swier Law Firm Estate Planning and Probate Law FAQs

No. In South Dakota, many people believe that the term “estate” only applies to the wealthy. However, in reality, almost everyone has an “estate.” Your estate is all of your property – your home, real estate, savings, bank accounts, life insurance policies, furniture, retirement plans, personal property and everything else you own. In other words, if you own property, you have an estate.

In South Dakota, a living will is a document that instructs your physician and other health care providers as to the circumstances under which you want life-sustaining treatment to be provided, withheld, or withdrawn.

The Federal Estate Tax is a tax on your right to transfer property at your death. It consists of an accounting of everything you own or have certain interests in at the date of death. The fair market value of these items is used, not necessarily what you paid for them or what their values were when you acquired them. The total of all of these items is your "Gross Estate." The includible property may consist of cash and securities, real estate, insurance, trusts, annuities, business interests and other assets.

The federal estate tax exemption - that’s the amount an individual can leave to heirs without having to pay federal estate tax - will be $5.43 million in 2015, up from $5.34 million for 2014. In other words, that’s another $90,000 that can be passed on tax-free. The top federal estate tax rate is 40%.

In South Dakota, the main advantage of adding your son's name to your house is that doing so will avoid probate and make it easier for him to take possession upon your death. The main disadvantage is that the property will be subject to any claims for your son's debts and could even come into the picture if he were to get divorced.

Yes.  In South Dakota, a "no contest clause" can be challenged on the grounds of:

 

             (1)      Fraud;

             (2)      Duress;

             (3)      Revocation;

             (4)      Lack of contractual capacity;

             (5)      Undue influence;

             (6)      Mistake;

             (7)      Forgery; or

             (8)      Irregularity in the execution of the trust document.

Yes.  A "no contest clause" is enforceable in South Dakota.

In South Dakota, a "no contest clause" is a provision or clause in a trust, that penalizes a qualified beneficiary for contesting a trust or instituting other proceedings at law or equity relating to the trust estate,

If the trust contains a spendthrift provision, no creditor may reach present or future mandatory distributions from the trust at the trust level. Also, no court may order a trustee to distribute past due mandatory distributions directly to a creditor.

Yes.  A trust for the care of a designated animal is valid.