The Swier Law Firm Estate Planning and Probate Law FAQs

Under South Dakota law, there are a variety of ways to title property. Title is the method in which property is owned. How property is titled impacts the drafting of your estate plan. In South Dakota, title is commonly held in three different ways: sole ownership, joint tenancy, and tenancy in common.

In a tenancy in common, two or more persons hold exclusive interest in the same property with no right of survivorship for the surviving tenant in common. Exclusive interest in the property means that each tenant in common has exclusive ownership in the entire property, not just a section of the property. Additionally, each tenant in common can transfer their share of the property by selling it, transferring it, giving it away, or by their choice at death through a will. Unlike joint tenancy, when a tenant in common passes away there is no right to survivorship. Basically, that means that upon the death of a tenant in common the ownership interest in the property passes to the heirs of the deceased in accordance with the South Dakota law of intestate succession, if you do not have a will, or to the beneficiaries named in the will of the deceased.

Under South Dakota law, there are a variety of ways to title property. Title is the method in which property is owned. How property is titled impacts the drafting of your estate plan. In South Dakota, title is commonly held in three different ways: sole ownership, joint tenancy, and tenancy in common.

The basic principle of sole ownership is that the property is owned by a single individual. The sole owner may use the property as he pleases and can distribute it to whomever he wants at his death through his will. However, if the sole owner dies intestate (without a will) the property will be distributed according to South Dakota's laws of intestate succession. The solely-owned property will be included in the gross estate and will continue through the probate process until title has been cleared for the heirs. If the sole owner has a will and appoints a personal representative, the personal representative will be responsible for distributing the property according to the will. However, if the sole owner dies without a will, the estate will have to wait until a personal representative is appointed by the Court.

In South Dakota, a living will is a document that lets your doctor know the kind of life support treatment you want in case of terminal illness or injury, in the event you cannot otherwise communicate your wishes to your physician.

In South Dakota, a living trust gives instructions for the disposition of your assets after you die.  However, unlike a traditional will, a living trust can also provide instructions in the event you become incapacitated before you die.  After a living trust has been established, you transfer your assets to it by changing the titles and beneficiary designations of your assets to your trust.

When applying for Medicaid in South Dakota, the state will “look back” to see if any gifts have been made.  South Dakota will not just let you give away your property or your money to qualify for Medicaid.  Any gifts or transfers for less than fair market value that are made during the “look back” period may cause a delay in Medicaid eligibility.

In 2006, the Deficit Reduction Act (“DRA”) changed the Medicaid rules. As a result, all transfers after February 8, 2006 are now subject to a 5-year "look back" period. If the gifts were made outside the "look back" period, then there is no disqualification period. However, if any gifts were made during the "look back" period, then Medicaid will not pay for nursing home care during the disqualification period. You should note that the disqualification period does not begin until the person actually moves to the nursing home and would otherwise be eligible for Medicaid.  Also, if the assets are returned or partially returned, the disqualification period can be shortened or eliminated.

Here are some examples to illustrate application of South Dakota's Medicaid eligibility rules

EXAMPLE #1:  In January of 2007, LeRoy gave his daughter $400,000.00. LeRoy enters a nursing home in Sioux Falls in March of 2013 and applies for Medicaid benefits.  Under this example, LeRoy's gift does not fall within the five-year "look back" period. 

EXAMPLE #2:  In July 2009, LeRoy gave his son $80,000.00. LeRoy entered a nursing home in Sioux Falls in January of 2013 and applies for Medicaid benefits.  Under this example, LeRoy's gift to his son falls within the five-year "look back" period. 

In South Dakota, Medicaid is a jointly funded, Federal-State health care program for persons who are financially eligible. Medicaid provides care for acute medical needs, rehabilitation, and long-term care at home and in nursing homes. There are also various community-based programs, including adult day care, and assistance with local transportation

In South Dakota, a special needs trust may be an important part of planning for a disabled child (even though the child may be an adult by the time the trust is created or funded). A special needs trust allows a disabled child to receive inheritances, gifts, lawsuit settlements, or other funds and not lose his eligibility for certain government programs, like Medicaid or Supplemental Security Income (SSI). These trusts are drafted so that the funds will not be considered to belong to the beneficiary in determining his eligibility for public benefits.

Yes.  Under South Dakota law, a personal representative may employ a qualified and disinterested appraiser to assist in determining the fair market value as of the date of the decedent's death of any asset the value of which may not be readily ascertainable.