A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. South Dakota wills permit the testator (the person writing the will) to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a South Dakota living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent's (the person who died) wishes, it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a South Dakota last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
The testator can name a person to oversee how their estate is handled. This person is called an executor and is responsible for seeing that the wishes outlined in the will are fulfilled. A South Dakota will must be filed with the probate court in order to open an estate. Once the will is proven, the executor can proceed to wrap up the estate, which includes collecting and protecting property, paying off debts, and then distributing assets.
South Dakota offers a simplified probate process for estates valued at less than $50,000.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In South Dakota in the absence of a will, a surviving spouse inherits the entire estate unless the decedent also has descendants from someone other than the spouse, in which case the spouse inherits the first $100,000 of the intestate property plus half the balance.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to Ability to Distribute Property
Not all property can be distributed according to a will. Some exceptions in South Dakota include the following:
- Property owned in joint tenancy with right of survivorship
- Elective share of decedent’s augmented estate for the surviving spouse, based on length of marriage
- Share to surviving spouse if omitted from will, with some exceptions
- Share to surviving children, with some exceptions
- Homestead allowance for surviving spouse (or minor children if no surviving spouse)
Form a Last Will in South Dakota
The basic requirements for a South Dakota last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his conscious presence, by his direction.
- Witnesses: A South Dakota will must be signed by at least two individuals who witnessed either the will’s signing or the testator’s acknowledgement of the signature.
- Writing: A South Dakota will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other Recognized Wills in South Dakota
South Dakota recognizes holographic (handwritten) wills so long as the material portions of the document and signature are in the testator’s handwriting.
Changing a South Dakota Last Will and Testament
A South Dakota will may be changed at any time by codicil, which must be executed in the same way as a will.
Revoking a South Dakota Last Will and Testament
The revocation of a South Dakota will can be accomplished by executing a subsequent will or by a revocatory act on the will, which includes “burning, tearing, canceling, obliterating, or destroying” the document or any part of it, done by either the testator or by someone else at his direction in his conscious presence with the intent and for the purpose of revoking the will.
If you are ready to make a last will, LegalZoom can help you get started with a last will online in three easy steps. LegalZoom also offers other legal products to help you prepare for the future, such as a living will and power of attorney.