The catalyst for greater national attention to this issue was 29-year-old Brittany Maynard, a woman diagnosed with terminal brain cancer who moved from California to Oregon to end her life in 2014. Maynard chose Oregon because California had not yet passed its aid-in-dying law, and Oregon is one of just a few other states to allow terminally ill patients to legally end their lives.
South Dakota has never officially considered adopting a medical aid in dying law. However, citizen groups are actively working to legalize aid in dying in South Dakota. If choice at the end of life is important to you, here are some things you can do:
“Death with dignity” and "medical aid in dying" are two of the most commonly accepted phrases describing the process by which a terminally ill person ingests prescribed medication to hasten death. You might also see the phrase “right to die” used in place of either of those terms. However, “right to die” is more accurately used in the context of directing one’s own medical care—that is, refusing life-sustaining treatment such as a respirator or feeding tubes when permanently unconscious or close to death. In South Dakota or any other state, you have a right to provide such directions or give any other health care instructions by completing a living will. Health care providers are required to honor your wishes or transfer you to another care provider who will do so.
For information about making known your wishes for medical care at the end of life and appointing a trusted person to ensure your instructions are carried out, see the Living Wills & Medical Powers of Attorney section of Nolo.com.
To find out more about the history and current status of medical aid in dying laws in the United States, visit the website of the Death With Dignity National Center.
Updated March 6, 2024
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 (2024).)
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. But a person who feloniously and intentionally killed the decedent is barred from serving as the decedent’s personal representative. (S.D. Codified Laws § 29A-3-803 (2024).)
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. (S.D. Codified Laws §§ 29A-1-201; 29A-3-203; 29A-3-414 (2024).)
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 (2024).)
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.
]]>Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don’t have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in South Dakota.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
If you die with: |
here’s what happens: |
children but no spouse | children inherit everything |
spouse but no descendants | spouse inherits everything |
spouse and descendants from you and that spouse | spouse inherits everything |
spouse and at least one descendant from you and someone other than that spouse | spouse inherits the first $100,000 of your intestate property, plus 1/2 of the balance descendants inherit everything else |
parents but no spouse or descendants | parents inherit everything |
siblings but no spouse, descendants, or parents | siblings inherit everything |
(S.D. Codified Laws §§ 29A-2-102; 29A-2-103 (2024).)
In South Dakota, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants—children, grandchildren, or great-grandchildren. If you don’t, or if all of your descendants are from you and your spouse, then your spouse inherits all of your intestate property.
If you have descendants from someone other than your spouse, your spouse inherits the first $100,000 of your intestate property, plus 1/2 of the balance. Your descendants inherit everything else. (S.D. Codified Laws § 29A-2-102 (2024).)
Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright—it isn’t intestate property. Jed also inherits $150,000 worth of Barrett’s property that is, $100,000 plus 1/2 of the remaining $100,000 balance. Barrett’s daughter inherits the remaining $50,000 share of Barrett’s property.
If you die without a will in South Dakota, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have, whether or not you are married, whether your spouse is also your children’s parent, and whether you have any children from a previous relationship. (See the table above.)
For children to inherit from you under the laws of intestacy, the state of South Dakota must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the law itself, you can find a link to the South Dakota Codified Laws at the end of this article.
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. (S.D. Codified Laws § 29A-2-105 (2024).)
However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, aunts, uncles, or cousins.
Here are a few other things to know about South Dakota intestacy laws.
To learn more about intestate succession, read How an Estate Is Settled If There’s No Will.
You can find South Dakota’s intestate succession laws here: South Dakota Codified Laws §§ 29A-2-101 to 29A-2-114.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
]]>You can make several different types of POAs in South Dakota. In particular, many estate plans include two POAs:
In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in South Dakota.
For your POA to be valid in South Dakota, it must meet these requirements.
The person making a power of attorney must be of sound mind. The exact contours of this mental capacity requirement are open to interpretation by South Dakota courts. If you're helping someone make a POA and you're unsure whether they have the required mental capacity, consult an estate planning attorney.
You must also have your POA notarized for it to be valid under South Dakota law.
South Dakota offers a statutory form (a form drafted by the state legislature) with blanks that you can fill out to create your POA. For a more user-friendly experience, try WillMaker, which guides you through a series of questions to arrive at a POA (and estate plan) that meets your specific aims and is valid in your state. You can also hire a South Dakota lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
Whatever method you choose, the process of making the POA will include either granting your agent comprehensive powers or selecting (initialing), from a list, each specific power you want your agent to have. For example, you might choose to grant your agent the power to act for you with respect to these subject areas:
In South Dakota, your POA is not durable unless it explicitly states that it remains effective after your incapacitation. In this respect, South Dakota differs from many states that have a default of durability. South Dakota's power of attorney statute suggests the following language if you want to make your POA durable: “This power of attorney shall not be affected by disability of the principal."
As mentioned above, you can't just sign the POA and call it a day. You must also have the POA notarized.
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your attorney-in-fact might need the original POA to act on your behalf.
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.
If you initialed "real property," giving your agent the power to conduct transactions with real estate, you should also file a copy of your POA in the land records office in the county where you own real estate or expect to deal with real estate in the future. In South Dakota, this office is called the register of deeds. If you put your POA on file, the register of deeds will be able to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
South Dakota allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
Your POA is effective immediately unless it explicitly states that it takes effect at a future date.
It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.
Any power of attorney automatically ends at your death. A durable POA also ends if:
Additionally, in South Dakota, if your spouse is named as your agent in your POA, that designation automatically ends if you or your spouse files for divorce. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent instead.
For more on South Dakota planning issues, see our section on South Dakota Estate Planning.
]]>In South Dakota, a death certificate must be filed with the health department within five days of the death. The funeral home, mortuary, cremation organization, or other person in charge of the deceased person's remains will prepare and file the death certificate. The easiest way to get copies of a death certificate is to ask this person or organization to order them for you at the time of the death. (S.D. Codified Laws § 34-25-25 (2023).)
If you're the executor of the estate (in charge of wrapping up the deceased person's affairs), you should ask for at least 10 certified copies. You'll need to submit a certified copy of the death certificate each time you claim property or benefits that belonged to the deceased person, including life insurance proceeds, Social Security benefits, payable-on-death accounts, veterans benefits, and many others.
If you need to order copies of a death certificate after some time has passed, visit the website of the South Dakota Department of Health . From there, you'll find information about applying for death certificates in person, online, by mail, or by phone.
To order certified copies of a death certificate, you must provide a photocopy of a government-issued photo ID or other acceptable identification. Each certified copy of a South Dakota death certificate costs $15, and extra fees apply when ordering online or by phone.
In South Dakota, certified copies of a death certificate may be issued only to:
Others may obtain non-certified, informational copies of a death certificate. These copies contain the statement, "For informational Purposes only. Not for legal proof of identification."
(For more details, see S.D. Codified Laws § 34-25-52 (2023) and the website of the South Dakota Department of Health.)
Two separate people need to complete different portions of the death certificate. The funeral director or other person in charge of disposition of the body collects personal information about the deceased person from the next of kin and files what's known as a "fact of death record" with the South Dakota Department of Health within five days of the death. (S.D. Codified Laws § 34-25-25 (2023).)
In addition, the attending physician, physician assistant, or certified nurse practitioner must complete, sign, and file the medical certificate (which states the cause of death), also within five days of death. (S.D. Codified Laws § 34-25-18 (2023).)
If the death occurred without medical attendance, the person in charge of the body must notify the coroner or sheriff of the death, usually within 24 hours of the death. (Failing to do so is considered a misdemeanor in South Dakota.) The coroner then completes, signs, and files the medical certificate within five days of the date of death, unless an autopsy or investigation is ongoing. (S.D. Codified Laws § 34-25-21 (2023).)
Embalming is a process in which blood is drained from the body and replaced with fluids that delay disintegration. Though it's still a common procedure, embalming is not usually necessary; refrigeration serves the same purpose.
In South Dakota, if final disposition of the body (burial or cremation) doesn't occur within 24 hours, then either embalming or refrigeration is required. (S.D. Admin. R. 20:45:02:07 (2023).)
A casket is often the single greatest expense incurred after a death. The average cost of a casket is more than $2,000, and the price can run into the $10,000-$20,000 range for more elaborate designs and expensive materials. Whether due to the cost or for other reasons, some people prefer to forgo a casket altogether.
Burial. No law requires a casket for burial. However, you should check with the cemetery; it may require a certain type of container.
Cremation. No law requires a casket for cremation. On the contrary, federal law requires a funeral home or crematory to inform you that you may use an alternative container, and to make such containers available to you. An alternative container may be made of unfinished wood, pressed wood, fiberboard, or cardboard.
No. In fact, federal law requires funeral homes to accept caskets that you buy from another source, such as an online retailer. You may also build a casket.
Most bodies are buried in established cemeteries, but there are no state laws in South Dakota that prohibit burial on private property. Before burying a body in South Dakota, you will need to obtain a burial permit from the health department or local registrar. (S.D. Codified Laws § 34-25-24 (2023).)
In addition, any person who conducts a burial must maintain a record of it, and every burial site must be mapped and recorded in the local office of the registrar of vital records. (S.D. Codified Laws § 34-27-8 (2023).)
Local governments often also have their own rules governing private burials. Before conducting a home burial, also check with the town or county clerk and local health department for any additional rules you must follow.
In South Dakota, cremation ashes may be placed in a crypt, niche, or grave—or kept at home. Ashes may also be scattered in any of the ways listed below. Generally, use common sense and refrain from scattering ashes in places where they would be obvious to others. If the remains are not claimed within 60 days after cremation, the crematory is authorized to scatter the ashes. (S.D. Codified Laws § 34-26A-24.1 (2023).)
Scattering ashes in an established scattering garden. Many cemeteries provide gardens for scattering ashes. If you're interested, ask the cemetery for more information.
Scattering ashes on private land. You are allowed to scatter ashes on your own private property. If you want to scatter ashes on someone else's private land, South Dakota law requires that you obtain written permission from the landowner and give it to the crematory.
Scattering ashes on uninhabited public land. South Dakota law allows you to scatter ashes on "uninhabited public land." If you aren't sure whether a particular place qualifies as "uninhabited" under the law, you may wish to check city and county regulations and zoning rules before proceeding. However, many people simply proceed as they wish, letting their best judgment be their guide.
Scattering ashes on federal land. Officially, you should request permission before scattering ashes on federal land. As with local or state land, however, you will probably encounter no resistance if you conduct the scattering ceremony quietly and keep the ashes well away from trails, roads, facilities, developed areas, campsites, and waterways. You can find guidelines for scattering ashes on the websites for some national parks. For more information, begin your search at the website of the National Park Service.
Scattering ashes at sea. The federal Clean Water Act requires that cremated remains be scattered at least three nautical miles from land. The EPA does not permit scattering at beaches or in wading pools by the sea. Finally, you must notify the EPA within 30 days of scattering ashes at sea.
The Clean Water Act also governs scattering in inland waters such as rivers or lakes. For inland water burial, you may be legally required to obtain a permit from the state agency that manages the waterway.
South Dakota law states that you must remove cremated remains from their container before scattering.
For more information, including the contact information for the EPA representative in South Dakota, see the EPA's page on Burial at Sea.
Scattering ashes by air. In South Dakota, ashes may be scattered from a plane. Federal aviation laws do prohibit dropping objects that might cause harm to people or property, but the U.S. government does not consider cremains to be hazardous material. All should be well so long as you remove the ashes from their container before scattering.
To learn about the federal rule on funerals, which protects consumers in all states, visit the FTC's Funeral Rule page.
For more information about funeral laws in South Dakota, see South Dakota Home Funeral Laws.
To find out more about funerals and other final arrangements, see Nolo's section on Getting Your Affairs in Order.
Get It Together, by Melanie Cullen (Nolo), helps you gather and organize the essential details of your life for yourself and your family.
]]>Here’s a quick checklist for making a will in South Dakota:
A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:
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.
No. You can make your own will in South Dakota, using Nolo's Quicken WillMaker & Trust. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or you have especially complicated goals, you should talk with an attorney. See Do I Need an Attorney to Make My Estate Plan?
To make a will in South Dakota, you must be:
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.
To finalize your will in South Dakota:
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.
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.
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.
In South Dakota, you may revoke or change your will at any time. You can revoke your will by:
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).
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.
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.
]]>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:
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.
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.
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:
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 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).
]]>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.
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:
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.
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:
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.
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.
To make a living trust in South Dakota, you:
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.
]]>In South Dakota, you can make a living trust to avoid probate for virtually any asset you own—real estate, bank accounts, vehicles, and so on. You need to create a trust document (it's similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then—and this is crucial—you must transfer ownership of your property to yourself as the trustee of the trust. Once all that's done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.
If you own property jointly with someone else, and this ownership includes the "right of survivorship," then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.
In South Dakota, this form of joint ownership is available:
In South Dakota, you can add a "payable-on-death" (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account—your POD beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.
South Dakota lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death. No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.
South Dakota allows you to leave real estate with transfer-on-death deeds, also called beneficiary deeds, as long as the deed is created and recorded after July 1, 2014. With a TOD deed, you sign and record the deed now, but it doesn't take effect until your death. You can revoke the deed or sell the property at any time; the beneficiary you name on the deed has no rights until your death. (S.D. Codified Laws §§ 29A-6-401 and following.)
South Dakota does not allow transfer-on-death registration of vehicles.
Even if you don't do any planning to avoid probate, your estate may qualify for South Dakota's simplified "small estate" probate procedures. For more details, see Probate Shortcuts. For more on avoiding probate, see 8 Ways to Avoid Probate, by Mary Randolph (Nolo).
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