The Swier Law Firm Estate Planning and Probate Law FAQs

A "Vested" interest means having an immediate interest in a piece of property or asset that a third party cannot take away. You can have a vested interest in something without yet having it and you can leave that vested interest to someone else in your will or even sell your interest.​

A "Holographic Will" is a will that is partially or fully handwritten. Not all states recognize holographic wills. However, South Dakota does recognize holographic wills.

Example: My grandma wrote a holographic will. She meant to have an attorney type it up, but never got around to it, but we were able to file her handwritten version with the court when she died.

A "Pour-Over Will" is used together with a revocable trust to “pour” any assets that were not in a decedent’s trust at the time of death over to the trust.

​Example: My wife and I have formed revocable trusts as part of our estate plan, but we still need to sign Pour-Over Wills for things that aren’t held in our trust when we die.

A "Will Contest" does not determine who has the best Will, it is a process where someone files a formal objection to a Will. 

The objection could be for any number of reasons, but the objection must be filed with and heard by the court of the county where probate of the Will is taking place.

Example: My uncle filed an objection to my grandma’s Will. He says grandma wasn’t competent when she wrote him out of the Will and didn’t know what she was doing.

​An "Ancillary Administration" occurs when a probate needs to be opened in another state, generally because a decedent owned real estate or other property there.

Example:  I had to open an ancillary administration in Illinois for my mom’s estate because she owned land in Illinois. This was necessary for me to pay-off the debt and sell the property in Illinois, but the land and the proceeds from the sale were then reported as part of the probate process in South Dakota.

Besides a last will and testament or trust, everyone should have a financial power of attorney, health care power of attorney, and a living will.  

If you want to know more about all 4 of these essential documents, please see our book Estate Planning in South Dakota. 

In South Dakota, undue influence consists of someone taking unfair advantage of another, especially when they hold real or apparent authority over them. An example of this is a caregiver for an elderly person who isolates them from their family and convinces them to leave most or all of their assets to the caregiver. Essentially, the person exerting undue influence takes unfair advantage of another person’s frailty of mind or body to get an unfair advantage over them. Undue influence can come from an outsider, such as the caregiver, or could come from a family member.

There is no limit to the amount you can give to your spouse, if you are both U.S. citizens. However, if you are a U.S. citizen but your spouse is not, you can give up to $152,000 to your spouse in 2019. Other common non-taxable gifts are:

• Tuition costs you pay for another person have no limit, as long as you pay the institution directly.
• Healthcare costs you pay for another person have no limit, as long as you pay the hospital or medical professional directly.
• Charitable contributions are also limitless, as long as the charity qualifies.

Do You Need To Speak With A Lawyer About Estate Planning?

If you need to speak with an experienced estate planning lawyer please contact us online or call our office directly at 888.864.9981. We will be happy to discuss your legal options!

You can give away up to $15,000 per year, per beneficiary, with no gift tax consequences to the recipient or yourself. This strategy can be as easy as writing a check to each of your loved ones during the holidays. The assets you give away using the annual gift tax exclusion do not count toward the lifetime exemption.

Do You Need To Speak With A Lawyer About Estate Planning?

If you need to speak with an experienced estate planning lawyer please contact us online or call our office directly at 888.864.9981. We will be happy to discuss your legal options!

Lifetime gift tax planning allows you to give assets to loved ones, without paying gift taxes now or estate taxes later. Years ago, the federal government found that taxpayers were trying to avoid estate taxes, by giving away some of their property while still alive. As the donors saw their loved ones enjoying the gifts, the IRS saw the taxpayers avoiding or reducing estate taxes on these gifted assets at the death.

As a result, the gift tax was enacted to keep people from avoiding the estate tax. The basic concept is - when you give someone an asset that exceeds a permitted amount, you (the donor) must pay the IRS for that privilege, in the form of a gift tax.

If you are trying to use the lifetime wealth transfers to lower the total value of your estate and avoid or reduce estate taxes, here are three things you need to know:

• The annual gift tax exclusion is $15,000 in 2019.
• The lifetime estate and gift tax exclusion is $11.4 million in 2019.
• Some gifts are not subject to the gift tax at all.

Do You Need To Speak With A Lawyer About Estate Planning?

If you need to speak with an experienced estate planning lawyer please contact us online or call our office directly at 888.864.9981. We will be happy to discuss your legal options!