Making a Will in South Dakota

Steps to Create a Will in South Dakota

Here's a quick checklist for making a will in South Dakota:

1. Decide what property to include in your will.
2. Decide who will inherit your property.
3. Choose an executor to handle your estate.
4. Choose a guardian for your children.
5. Choose someone to manage children's property.
6. Make your will.
7. Sign your will in front of witnesses.
8. Store your will safely.
9. Deposit your will with the court, if you prefer.

What Can I Do With a South Dakota Will?

A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:

• leave your property to people or organizations
• name a personal guardian to care for your minor children
• name a trusted person to manage property you leave to minor children, and
• name a personal representative, the person who makes sure that the terms of your will are carried out.

What Happens If I Don't Have a Will?

In South Dakota, if you die without a will, your property will be distributed according to state "intestacy" laws. South Dakota's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, nieces and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I Need a Lawyer to Make a Will in South Dakota?

No. You can make your own will in South Dakota, using Nolo's Quicken WillMaker. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.

What Are the Requirements for Making a Will in South Dakota?

To make a will in South Dakota, you must be:

• an individual 18 years of age or older, and
• of sound mind. S.D. Codified Laws Ann. § 29A-2-501.

In South Dakota, your will can dispose of property you own at the time you make your will, as well as any property your estate acquires after your death..S.D. Codified Laws Ann. § 29A-2-602.

You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Type and print your will using a computer, or you can use a typewriter. South Dakota does permit handwritten wills (S.D. Codified Laws Ann. § 29A-2-502.), but they are usually not a good idea.

How Do I Sign my South Dakota Will?

To finalize your will in South Dakota:

• you must sign or acknowledge your will in front of two witnesses, and
• your witnesses must sign your will in front of you. S.D. Codified Laws Ann. § 29A-2-502.

While South Dakota law allows "interested" parties who stand to inherit from your will serve as witnesses (S.D. Codified Laws Ann. § 29A-2-505), it's usually best to only have disinterested witnesses sign your will to avoid any accusations of impropriety.

A holographic will does not have to be witnessed but all material portions in it and the signature must be in your own handwriting. S.D. Codified Laws Ann. § 29A-2-502.

Do I Need to Have My Will Notarized?

No, in South Dakota, you do not need to notarize your will to make it legal.

However, South Dakota allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.

To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that proves who you are and that each of you knew you were signing the will. S.D. Codified Laws Ann. § 29A-2-504.

Should My Will Name a Personal Representative?

Yes. In South Dakota, you can use your will to name a personal representative who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker produces a letter to your personal representative that generally explains what the job requires. If you don't name a personal representative, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

In South Dakota, you may revoke or change your will at any time. You can revoke your will by:

• burning, tearing, canceling, obliterating, or destroying all or part of the will
• ordering someone else to burn, tear, cancel, obliterate or destroy all or part of the will in front of you, or
• making a new will that says it revokes the old will or that has contradictory terms to the old will. S.D. Codified Laws Ann. § 29A-2-507.

If you have two wills and it's not clear whether you revoked the old will or not, South Dakota has rules that determine whether your new will revokes the old one or simply adds to it. If you intended to revoke the old will, the old will is revoked. South Dakota law presumes you intended to revoke your old will if the new will disposes of all of your estate. If you didn't dispose of all of your estate in your new will, South Dakota law presumes you only meant to add on to your old will. In this situation, the executor should follow the instructions in both wills. If there's a contradictory term, the executor should follow the instructions of the new will for that particular term. S.D. Codified Laws Ann. § 29A-2-507.

If you and your spouse divorce (or if a court determines that your marriage is not legal), South Dakota law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule also applies to any of your spouse's relatives. This rule does not apply if you specifically state in your will (or divorce decree or contract relating to the division of your property) that divorce should not affect the provisions in your will or if you happen to remarry your spouse. S.D. Codified Laws Ann. § 29A-2-804. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.

If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).

Can I Make a Digital or Electronic Will?

In a few states, you can make a legal will digitally – that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. It is generally assumed that most states will allow them in the near future.

South Dakota recognizes wills that were made in other states as long as you follow that state's laws when making the will. S.D. Codified Laws Ann. § 29A-2-506. However, South Dakota's current law on making wills says that you must sign your will in the "conscious presence" of witnesses, so if the state were to recognize electronic wills, they would have to modify this law or include digital witnessing within the definition of "conscious presence." S.D. Codified Laws Ann. § 29A-2-506. However, with North Dakota adopting an electronic will law in 2021, it is more likely South Dakota might follow suit.

Where Can I Find South Dakota's Laws About Making Wills?

You can find South Dakota's laws about making wills here: South Dakota Codified Laws Title 29A Uniform Probate Code Chapter 2 Intestate Succession and Wills Part 5 Wills, Will Contracts, and Custody and Deposit of Wills.