Creating a will is an important step in planning the distribution of your estate (assets including real and personal property) following your death. South Dakota wills allow for any children, your spouse, other family members, and pets to be provided for after your death. LegalZoom works with you, the testator (the person making the will), to create valid South Dakota wills and to assign a person (called the executor in most states) to administer a South Dakota last will and testament after the death of the testator.
Basic Requirements for a South Dakota Last Will and Testament:
Age: The testator must be at least 18 years old.
Capacity: The testator must be of sound mind (capable of reasoning and making decisions).
Signature: A South Dakota last will and testament must be signed by the testator, or by some other person under the testator's direction in the testator's presence.
Witnesses: At least 2 witnesses (who are not beneficiaries) are required for a valid South Dakota last will and testament by subscribing their names to the will, or by signing an affidavit, while in the presence of the testator and at the testator's direction or request. If a witness is a beneficiary, his or her bequest is void unless he or she would have received the bequest anyway in the absence of the will.
Writing: A South Dakota last will and testament must be in writing to be valid.
Beneficiaries: A South Dakota last will and testament may make a disposition of property to any person.
Other types of recognized wills:
Holographic Wills: A holographic will is one that is handwritten by the testator. Handwritten wills must be witnessed to be valid. Although South Dakota law recognizes a handwritten will, state laws can be very particular regarding handwritten wills. Handwritten wills that are not properly witnessed are invalid in South Dakota
Distribution of Property:
A will is a legal document created by you to determine how your property, known as your estate, is distributed after your death. Your estate consists of assets and property including bank accounts, homes, land, furniture, automobiles, and securities (stocks and bonds). In general, South Dakota laws allow you to dispose of your property as you wish.
Other Functions of Wills:
LegalZoom's South Dakota wills form may be used to designate a guardian for any minor children.
Our South Dakota wills form may be create a trust and designate a trustee to handle an estate (property left after death) on behalf of children or others.
Our South Dakota wills form may also be used to name an executor to handle a decedent's (the person who died) property and affairs from the time of death until an estate is settled.
Notable exceptions to the ability to distribute property:
Jointly owned property with the rights of survivorship automatically passes onto the survivor.
A spouse may elect to take an elective share of the decedent's "augmented" estate that is based on the length of the marriage, or he or she may take under the will (but not both).
Omitted Spouse: If a will fails to name or provide for a spouse, the spouse must receive a portion of the testator's estate as provided by South Dakota law, unless it appears either from the will or from other evidence that the omission was intentional.
Omitted Child: If a will fails to name or provide for a child, the child must receive a portion of the decedent's estate as provided by South Dakota law, unless it appears either from the will or from other evidence that the omission was intentional. A child conceived by testator prior to death and born within 10 months after testator's death inherits as if the child had been born in the lifetime of the decedent.
Providing for Pets
South Dakota law currently does not have specific statutes pertaining to providing care for pets. However, the testator may specify a beneficiary to be the new owner of a pet using our South Dakota wills form.
Changing and Revoking
Changing a South Dakota Will and Testament
A South Dakota will and testament may be changed whenever the testator desires.
A South Dakota will and testament can be changed through a codicil, which is a document stating additions or changes to the original will. Codicils must be executed in accordance with South Dakota probate laws.
Revoking a South Dakota Will and Testament
A South Dakota will and testament, or any part thereof, can be revoked:
By a subsequent will that revokes, or partially revokes, the prior will expressly or by conflicting or different parts; or
By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator or by another person in the presence and by the direction of the testator.
Revocation of a will in its entirety revokes its codicils, unless revocation of a codicil would be contrary to the testator's intent.
Probate and Estate Taxes
Probate is a legal process for starting the transfer of property when the testator dies. The procedures validate the South Dakota last will and determine ownership of the property. Property that does not pass via right of survivorship, trust, or insurance is subject to probate proceedings.
After the South Dakota last will is admitted at court, the executor files applications for the probate of a will and for legal documents called letters testamentary.
Several important functions of probate proceedings include:
Collecting, or taking possession of, the decedent's property.
Protecting and preserving the decedent's estate.
Paying all debts, claims and taxes.
Determining who is entitled to the assets and distributing the property according to the South Dakota last will.
Every estate may be subject to federal and South Dakota death taxes, depending on the value of assets included in the taxable estate. The federal tax is based on the value of assets in the taxable estate. The South Dakota estate tax is equal to the state death tax credit allowed on the federal tax return. Filing a South Dakota estate tax return does not increase the total tax liability of the estate, but instead redirects revenues to the state which would go to the federal government. Generally, if no federal estate tax is due, then no South Dakota estate tax is due either.
It is extremely important to make a South Dakota will if you want to control the distribution of your estate. If you die before you make a South Dakota will, or other valid will, you are said to have died "intestate" and your property will be distributed according to strict South Dakota state laws.
For example, the surviving spouse receives the entire estate when there are no surviving family members or children of the decedent. If there are children who are descendants of the surviving spouse and decedent, then the spouse still takes the entire estate. If the decedent leaves a child from a prior marriage along with the surviving spouse, then the spouse takes the first $100,000 and of the balance of the intestate estate, and the child receives the other half of the estate.
If you make a South Dakota will, your valid will prevents the laws of intestacy from deciding the distribution of your estate.