Following are instructions for completing Nolo's South Dakota Transfer-on-Death Deed.
You can use Nolo’s South Dakota Transfer-on-Death Deed to leave real estate at your death. The real estate will automatically go to the person you named to inherit it -- the TOD beneficiary -- without the need for probate court proceedings. (South Dakota Codified Laws § § 29A-6-401 to 29A-6-414.)
Signature(s), notary, and recording. You must sign the deed and get your signature(s) notarized, and then record (file) the deed with the county recorder's office before your death. Otherwise, it won't be valid.
The beneficiary's rights. The person you name in the TOD deed to inherit the property has no legal right to it until your death. The beneficiary doesn't have to sign or acknowledge the deed. Of course, it's a good idea to let the beneficiary know that you've recorded a TOD deed. Otherwise he or she might not know about it, even after your death.
Earlier wills. If you have previously made a will, or a TOD deed, that leaves the property to someone, your new TOD deed will override the earlier document.
Your rights. You keep complete ownership of and control over the property while you're alive. You pay the taxes on it, and it's not protected from your creditors. You can sell it, give it away, or mortgage it. Because you're not giving it away now, there's no federal gift tax.
Revoking the deed. Later, if you change your mind about who you want to inherit the property, you are not locked in. You can give or sell the property to someone else, record a revocation, or record another TOD deed, leaving the property to someone else. You cannot use your will to revoke a TOD deed. If joint owners sign the TOD deed, a revocation signed by one owner does not affect the other owner's transfer on death. If spouses or domestic partners sign a deed transferring community property, the deed is considered revoked only if it is revoked by both spouses or domestic partners. If one of the spouses or domestic partners dies, however, the survivor may revoke the deed.
How ownership is transferred. At your death, ownership passes automatically to the beneficiary you named in the deed. Any mortgage or debt attached to the land goes along with it. To retitle the real estate in the new owner's name, the new owner should record a sworn statement (affidavit) and a copy of the death certificate. The process is simpler and quicker than probate.
Liability for debts after your death. If, after your death, there isn't enough money in your estate to pay your debts, creditors can file a court claim, seeking payment from any real estate transferred by a TOD deed. Most creditors will have six months from the time of your death to file the claim, but the Department of Social Services will have up to two years to file a claim for recovery of medical assistance. (See South Dakota Codified Laws § 29A-6-421.)
This form may be signed by one person or by two people who own property together. If you own the property with someone else, how to proceed depends on how you and the other co-owners hold title to the property. If you don't know how you hold title, start by looking at the deed that transferred the property to you. It might say, for example, "to Joanne Hayden and Edward M. Hayden, as tenants in common." If you're not sure how you co-own the property, consult a lawyer.
There are two common ways to co-own property in South Dakota:
Joint tenancy. If you own real estate as joint tenants, and together you sign a TOD deed, then the property will go to the TOD beneficiary when the last joint tenant dies.
If you're the only joint tenant who signs and records a TOD deed, the deed will be effective only if you are the last surviving owner of the property. If you die first, the surviving co-owner(s) will own the property, and the TOD deed won't have any effect.
If you want to transfer only your share of the property, you can first change the joint tenancy into a tenancy in common, by preparing and recording a deed to that effect. (You'll need a quitclaim or grant deed, not a TOD deed.) Then you could use a TOD deed to leave just your interest in the property.
Tenancy in common. If your deed doesn't state how you own the property, you and your co-owners are presumed to own it as tenants in common, unless the co-owner is your spouse or you've agreed otherwise in writing. As a tenant in common, you can leave your interest to someone by using a TOD deed that's signed by you alone. Only your interest in the property will be transferred to the beneficiary when you die. For example, if you own a house with your brother as tenants in common, you can sign a TOD deed that leaves your half-interest to your daughter. At your death, your daughter will become a tenant in common with your brother.
If you're not sure how you co-own the property or whether or not your spouse has any rights to it, consult a lawyer.
Trust property. If you hold real estate in a trust, you probably won't need to use a TOD deed, because trust property doesn't need to go through probate anyway. If for some reason you want to use a TOD deed instead, you'll probably need to transfer the property out of the trust first. Talk to a lawyer about your estate plan.
You can name anyone you please to inherit your real estate -- a person, more than one person, or an organization such as a favorite charity.
More than one beneficiary. If you name more than one person, think carefully about how they will feel about owning the property together. Co-ownership is cumbersome and often causes tension. For example, one co-owner could force a sale of the property even if the other co-owners didn't want to sell.
If a beneficiary dies before you do. If you name more than one primary beneficiary, and one of them doesn't survive you, the surviving primary beneficiary(ies) will inherit the property. Alternate beneficiaries will inherit only if all of the primary beneficiaries die before you do. To avoid any confusion, the best thing to do is make a new deed specifying what you want to have happened to the property.
Children under age 18. Think twice about naming a child under age 18 as a beneficiary. A child can take title to the property, but an adult will need to manage it. You may have several options for naming an adult to manage the property, including:
For more information, see Nolo's article Leaving an Inheritance for Children. If you need help setting up a property management method for a young beneficiary, consult a qualified estate planning lawyer.
The 120-hour rule. Your South Dakota transfer-on-death deed will be subject to South Dakota's standard 120-hour survival rule unless you specifically waive that requirement. The goal of this survivorship rule is to prevent your property from going to your beneficiary's beneficiaries -- rather than to your own beneficiaries -- if you and that beneficiary die close in time.
Here's an example: Sarah uses a transfer-on-death deed to leave her house to her brother Juan. She names contingent beneficiaries who will get the house if Juan does not survive her. Juan uses a will to leave all of his property to his wife Jenny. If Sarah and Juan are in a car accident together and Sarah dies on June 10, her house will go to Juan. This is true even if Juan dies two days later on June 12. And because Sarah's house is then part of Juan's estate, the house will go to Juan's wife, instead of to Sarah's contingent beneficiaries. However, if the 120-hour rule is applied, Juan (and then Jenny) would not get Sarah's house because Juan did not survive Sarah by 120 hours. Instead, Sarah's house will go to the contingent beneficiaries she named in the transfer-on-death deed.
When you are making Nolo's South Dakota Transfer-on-Death Deed, you can choose whether you want to apply or waive the 120-hour rule.
Accurate, plain-English legal information can help many people create useful legal documents. But general information is never a substitute for personalized advice from a knowledgeable lawyer. If you want professional advice about the best way to craft or use legal documents in your particular circumstances, consult an attorney licensed to practice in South Dakota.