Myth #1: The State Will Take All My Money If I Don’t Have A Will.
Reality: The state of South Dakota actually tries hard to replicate what they think you would have wanted to happen with your assets, even if you didn’t say what you wanted. If you die without a Will (known as dying “intestate”) your assets will pass in accordance with South Dakota law. The law starts by looking for people in your life that were closest to you. If you had a spouse your money will start there. In South Dakota, if you had no descendants or if all your descendants were also descendants of your spouse, then your assets will pass to your spouse. If you had descendants that were not from your spouse then your assets will start to be divided among different people in percentages.
Despite the state trying to replicate what you would want, it still is much easier to distribute your assets if you have a valid Will at the time of your death. Even if you end up distributing things exactly how they would otherwise be distributed under state law, dying with a Will helps expedite the entire process of probating your estate – it leaves no doubt as to where you want your assets to go to and also helps in naming the personal representative or executor put in charge of sorting it all out.
Myth #2: If I Write A Will It Can Say Whatever I Want It To Say.
Reality: Not exactly. Yes, your Will can say anything you want it to say. However, not everything you may write in your Will may be allowed under state law. The biggest thing that the state may have a say over would be if you wanted to disinherit your spouse. The state, if requested by your surviving spouse, can essentially force your estate to provide your surviving spouse a portion of your estate. This legal maneuver harkens back to English law concepts of dower or curtesy, both of which were designed to reserve portions of an estate for the surviving spouse to prevent that spouse from falling into poverty and becoming a burden on the community.
In South Dakota, the amount of the estate your surviving spouse can claim depends on how long you have been married with the maximum amount of 50% being reached at 15+ years of marriage. Your surviving spouse does not automatically receive this amount; he or she must affirmatively “elect” to take this share, but there are circumstances in which your surviving spouse may be forced to make this election, such as if they are receiving certain income or asset-based benefits.