How Probate Laws Work in South Dakota

When a loved one passes away, you have to deal with grief and many other responsibilities. If they left any assets, they will need to be managed and dispersed according to the directions in the will. This can be a cumbersome and complicated task.

Probate is the legal method of handling the estate of a deceased person. The court monitors what happens with the estate in accordance with the stipulations of the will.

Is Probate Required in South Dakota?

Probate is usually considered necessary in South Dakota to distribute the assets to the heirs. However, there are a few ways to avoid having an estate go through probate.

How Do You Avoid Probate in South Dakota?

It is possible to avoid probate, but you must plan ahead. When a person puts an estate into a living trust, it automatically goes to the person or people who are named as the beneficiary. There is no need for probate with this option.

Assets that have joint owners don’t need to go through probate either. When one owner dies, the asset goes to the surviving owners. Any assets that have a named beneficiary will not need to be included in probate. This may include bank accounts, life insurance policies, investment accounts, and retirement accounts.

Can an Executor of an Estate in South Dakota be Compensated?

The state of South Dakota allows for the executor to be compensated for their work with the estate. They can be paid for any expenses they have from doing those tasks if they used their own funds for payment.

How Much Does an Executor in South Dakota Get Paid?

South Dakota doesn’t provide a strict rule for compensation of the executor. However, the statutes do address this issue in 29A-3-719 with “reasonable compensation” which includes costs advanced. The statute goes on to list factors to be included in determining what is reasonable, such as time involved, difficulty of the tasks and skills necessary, fees typically charged, and experience of the person performing the duties.

The statute continues with a list of percentages to use as guidelines with the value of the personal property as the basis. The rate of five percent is given for the first $1000, the next $4000 is at four percent with anything over that amount at 2-1/2 percent.

How Long Does Probate Take in South Dakota?

Probate must be open for at least four months after notice is given to creditors by publication in a newspaper. This is the length of time they have to submit claims against the estate. In reality, probate will likely be open for longer because it takes time to move through all the steps. A larger estate may be open for a year while some may not be completed for several years with delays and other issues.

Do All Estates Have to Go Through Probate in South Dakota?

Most estates will need to go through probate in South Dakota. However, they may qualify for informal or simplified probate as long as the value of the assets is $50,000 or lower. In this case, the process would be much simpler and the timeline shorter.

If the value of the estate is under $25,000, an affidavit allows the assets of an estate to be transferred to the heirs without probate. However, the creditors must still be paid.

Does a Will Have to Be Probated in South Dakota?

A will must be probated even if there is no estate or the estate doesn’t need to go through probate. The will is filed with the court in the county where the person lived at the time of their death. The court must ensure the will is valid and will handle any issues of contest against the will.

Settling an Estate in South Dakota

Since South Dakota uses the Uniform Probate Code, the process is quite simplified. However, the basic steps remain the same. Anyone involved in probate should have an understanding of what happens with probate.

These steps can be quite complicated with a larger estate. South Dakota doesn’t require an attorney with probate, it can be helpful to seek legal counsel.

How Long Do You Have to File Probate After a Death in South Dakota?

According to 29A-3-108 of the South Dakota statutes, probate must be started within three years of the decedent’s death. The statute does allow for several exceptions, such as whether there was sufficient doubt of the death of the decedent.

Probate Court in South Dakota

The circuit courts in South Dakota are responsible for probate. The state has seven districts, serving multiple counties. In each county, the circuit court clerk handles the filing for probate and other duties. You can visit the South Dakota Unified Judicial System website Circuit Court (sd.gov) to find contact information for the county where the deceased person lived.

Probate Code in South Dakota

South Dakota has been using the Uniform Probate Code since 1995 to simplify this process. While it didn’t adopt the entire code, it does follow Articles I, II, III, IV, and VIII to simplify the process and make it easier to liquidate the assets of the decedent. You can find the statutes for probate on the South Dakota Legislature website: SDLRC – Codified Law 29A-3 (sdlegislature.gov).

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