What Is a Living Trust?

A "living" trust (also called an "inter vivos" trust) is simply a trust you create while you're alive. The beneficiaries you name in your living trust receive the trust property when you die. You could instead use a will, but wills must go through probate—the court process that oversees the transfer of your property to your beneficiaries.

Many people create a revocable living trust as part of their estate plan. You can modify or revoke (cancel) this type of trust at any time. Typically, you'll name yourself as the "trustee" of your trust. This means that while you're alive, you retain control of the trust and its property. In your trust document, you'll also name a "successor trustee" to take over and manage the trust after you die; this person will distribute the property in the trust to your beneficiaries. (If you create a shared living trust, as is often done by married couples, then your successor trustee would assume control after both spouses have died.)

In contrast, irrevocable trusts cannot be revoked or modified after they are signed. Irrevocable trusts can be useful tools for specific goals, like reducing taxes, but they require giving up ownership and control of trust property.

Do I Need a Living Trust in South Dakota?

When you set up a living trust to transfer your property to your loved ones after your death, you can potentially save them time, hassle, and money. Property left through a will (rather than a living trust) might be tied up for months or even years in probate court, and could involve significant court costs and lawyers' fees. By contrast, property left through a trust can be distributed to your beneficiaries almost immediately, and often without the need for an attorney.

Fortunately, South Dakota is one of the states that has fully adopted the Uniform Probate Code, a model law that streamlines the probate process. In other words, probate in South Dakota might not be quite as cumbersome as it is in other states. In addition, South Dakota also offers simplified probate processes for "small" estates. Your inheritors can skip probate court altogether and use a simple affidavit (sworn statement) to claim property if:

• the value of the entire estate doesn't exceed $50,000, and
• your estate doesn't owe the Department of Social Services for medical assistance.

Any estate can also request a probate shortcut called "informal probate." The executor or personal representative of the estate simply prepares a request in writing that contains information such as the executor's name and address, identifying information about the deceased person, and a few other points set out in South Dakota's Codified Laws 29-A-3-301.

If your estate is likely to qualify for one of these fast-track procedures, you might not need to worry about making a living trust just to avoid probate. Even if it doesn't qualify, you could still very reasonably conclude that a will rather than a living trust is sufficient for your purposes, since South Dakota's probate process is more streamlined, compared to other states. Still, there are a few other advantages of making a living trust. (See Living Trust vs. Will.)

Additionally, in South Dakota, you can transfer real property using a transfer-on-death deed; this can keep your home out of probate without using a living trust.

In South Dakota, If I Make a Living Trust, Do I Still Need a Will?

Yes, you'll still need a will. This might seem confusing—isn't the point of a living trust to avoid needing a will? Yes, it is, and your will might never be used. But you should still write one, for one or both of the following reasons:

• Designating a guardian for minor children. You cannot use a trust to name a guardian for your minor children. For this reason alone, if you have minor children, you should write a will that names the guardian.
• Accounting for property that you have not transferred to your trust. It happens all the time—people create a trust and forget to formally transfer property to the trust (for example, they never get around to changing the deed on their house). Or, people buy or inherit property after they've set up their trust, and forget or don't know to take ownership as the trustee of their trust. Either way, the property will not be distributed according to the terms of the trust. You should have a will as a backup to dictate how assets that are not in the trust should be distributed.

If you don't have a will, any property that isn't transferred by your living trust or other method (such as joint tenancy) will go to your closest relatives as determined by South Dakota state law.

Can a Living Trust Reduce Estate Tax in South Dakota?

Probably not. But most people do not need to worry about federal estate taxes anyway because the federal estate tax is levied only on estates worth close to $12 million. South Dakota does not have its own estate tax.

If you have an estate worth close to $12 million (or you and your spouse or partner have a combined estate of close to $24 million), you might be able to use a more complicated trust (such as an AB trust) to reduce or avoid federal estate taxes.

How Do I Make a Living Trust in South Dakota?

To make a living trust in South Dakota, you:

1. Choose whether to make an individual or shared trust.
2. Decide what property to include in the trust.
3. Choose a successor trustee.
4. Decide who will be the trust's beneficiaries—that is, who will get the trust property.
5. Create the trust document. You can get help from an attorney or use Willmaker & Trust (see below).
6. Sign the document in front of a notary public.
7. Change the title of any trust property that has a title document—such as your house or car—to reflect that you now own the property as trustee of the trust.

You can use WillMaker & Trust to make a living trust using your computer. It has a simple interview format that allows you to complete the trust at your own pace, and it gives you lots of legal and practical help along the way. Based on your responses, the program produces a living trust document customized for you and your situation. With WillMaker & Trust, you can also make a will, powers of attorney, health care directives, transfer on death deeds, and many other useful documents. Use it just for yourself or for your entire family.

For more on South Dakota estate planning issues, see South Dakota Estate Planning.