One of the most important reasons to make a will is to name your executor -- commonly called a “personal representative” in South Dakota. After your death, your executor’s primary job is to protect your property until any debts and taxes have been paid, and then transfer what’s left to those who are entitled to it.
Every state has some rules about who may serve as the executor of an estate that goes through probate. Here are the requirements in South Dakota.
Your executor must be:
(S.D. Codified Laws § 29A-3-203.)
Many states prohibit people who have felony convictions from serving as executor. In South Dakota, however, there is no statute prohibiting you from naming an executor who has been convicted of a felony.
In addition to the restrictions above, a South Dakota probate court will reject a potential executor found to be “unsuitable in formal proceedings.” It’s highly unlikely, but if a question arises about the qualifications of the person you’ve named as your executor, the court will hold a formal hearing in front of all “interested persons” -- such as your spouse, heirs, creditors, and other potential executors. At the hearing, a judge will determine who is best suited to serve as executor and terminate any appointment found to be improper. (See S.D. Codified Laws § § 29A-1-201, 29A-3-203, 29A-3-414.)
While you can name a bank or trust company as your executor, it must be authorized to conduct trust business and exercise trust powers in South Dakota. (S.D. Codified Laws § 29A-3-203.) That said, think carefully before appointing a corporation to represent your estate. It’s almost always best to name an individual; consider an institution only if you don’t know anyone you trust enough to serve or your estate is very large and complex.
Unlike many states, South Dakota does not impose special requirements on executors who live out of state. But that doesn’t mean it’s a good idea to appoint someone who lives far away. For practical reasons, it’s usually best to name an executor who lives near you. Your executor may have to handle day-to-day matters for weeks, months, or sometimes longer.
For more information about choosing your executor and making your will, see the Wills section of Nolo.com.