Probate Shortcuts in South Dakota

The probate process can be long and drawn-out, costing your survivors time as well as money. Fortunately, South Dakota offers two probate shortcuts for "small estates." If the property you leave behind at your death is below a certain amount, your loved ones may be able to skip probate entirely using what's known as a "small estate affidavit." And even if your estate is not small enough to skip probate, it may still be able to use a simplified procedure known as "informal probate," which allows property to be transferred more quickly and with less hassle.

Collecting Property With a Small Estate Affidavit

South Dakota offers a procedure that allows inheritors to skip probate altogether. To qualify, the estate (the property you own at death) must meet these requirements:

• the value of all property, less liens and encumbrances (debts), can't exceed $100,000
• at least 30 days have elapsed since the death
• no application or petition for appointment of personal representative is pending or has been granted in any jurisdiction (so if a probate proceeding has already started, the estate probably won't qualify), and
• the deceased person didn't have debts to the Department of Social Services for medical assistance or institutional (such as nursing home) care.

S.D. Codified Laws § 29A-3-1201.

The affidavit can't be used to transfer real estate—only "personal property," which is essentially everything but real estate. But if there's real estate worth less than $50,000, a different affidavit, specifically for real estate, can be used to transfer the real estate. S.D. Codified Laws § 29A-3-1203. The process is similar to the affidavit for personal property (discussed below), but the affidavit to transfer real estate must also be filed in the Register of Deeds of the county where the real estate is located.

How to Use South Dakota's Collection of Personal Property by Affidavit

If your estate meets the requirements listed above, all your inheritor has to do is sign a simple document under oath, called an affidavit. The affidavit contains a statement that the inheritor is entitled to the property, as well as statements that the estate meets each of the requirements discussed above.

After signing the document (and swearing to its truthfulness) and having it notarized, the inheritor simply presents the affidavit to the person or institution holding the property—for example, a bank where the deceased person had an account. The inheritor will usually also need to provide a certified copy of the death certificate. After that, the person or institution transfers the property.

Simplified Probate for Small Estates (Informal Probate)

Another probate shortcut that South Dakota offers is a simplified probate process for small estates, called "informal probate" in South Dakota. Unlike the affidavit procedure discussed above, summary administration does not allow your survivors to skip probate. However, the probate process is more streamlined than full probate, saving time, probate fees, and potentially lawyer fees.

You can ask the probate court to allow an informal probate proceeding for an estate of any size. S.D. Codified Laws Ann. § 29A-3-301. You do so by preparing a written request that includes:

• a statement of the applicant's interest in the estate
• the name, date of birth, address, and date of birth of the deceased person
• names and addresses of any inheritors (including ages if any are minor children)
• information about any personal representative that has been appointed
• statement about whether the applicant has received, or is aware of, a demand for notice, and
• a statement either that (1) three years or less have passed since the deceased person's death or (2) special circumstances exist if it's been more than three years.

S.D. Codified Laws Ann. § 29A-3-301. If there's a will, you'll need to attach it and provide other information about the will. And if there's no will, you'll need to state that after a reasonable search you're not aware of the existence of a will and provide a few other statements.

If it's available to your estate, informal probate allows the executor or personal representative to distribute the property in the estate without having to jump through all of the hoops of regular probate.

For More Information

For more help handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo). For an introduction to how you can plan your estate to help your survivors, try Estate Planning Basics, by Denis Clifford (Nolo).