Making a will is critical to protect your loved ones and your assets after you die. You control who manages your estate, who receives your property, and who cares for your minor children. But how do you make a valid will in South Dakota? We have the answers to your frequently asked questions.
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What If I Die Without a Will in South Dakota?
If you die without a will, you die “intestate.” A South Dakota probate court distributes your estate according to state intestacy laws. Typically, a decedent’s estate goes to their family members and next of kin. If you have a partner but are not married or you have stepchildren that you did not yet adopt, they do not receive any of your assets under intestate succession.
And if the state can’t locate your next of kin, your intestate estate becomes property of South Dakota.
What Does a Will Do?
A South Dakota last will and testament allows you to direct how you want your estate handled. You leave instructions on property distribution and care for your family members. In your will, you can also do the following:
- Name a personal representative or executor to administer your estate. They locate your will and assets, submit the will to the probate court, and follow the instructions in your will to distribute your estate
- Identify and give away specific items of personal property and real property (real estate)
- Name loved ones and family members as beneficiaries to inherit the rest of your property
- Name guardians for your young children, if needed
- Name caregivers for pets
- Make gifts to charitable organizations
Because you made these decisions in your will, you streamline the probate process, saving time and court fees.
What Doesn’t a Will Do?
While your will transfers many kinds of property, it does not transfer all of your assets. For example, some assets transfer through beneficiary designations or according to the terms of their legal documents. These are known as non-probate assets and go to the beneficiaries you name. Examples of non-probate assets may include:
- Funds in payable-on-death or transfer-on-death bank accounts and investment accounts
- Proceeds from life insurance policies or annuities (to named beneficiaries)
- Retirement accounts, pensions, 401(k)s, IRAs, and Keoghs
- Property owned under joint tenancy with right of survivorship
- Property owned by living trusts
You name a beneficiary and a backup beneficiary in case your primary beneficiary dies before you. If you have an account or policy without a named beneficiary, that asset goes into your probate estate. Making sure you have named beneficiaries on all your non-probate accounts and assets keeps them out of probate court.
Who Can Make a Will in South Dakota?
A testator is the person making their will. South Dakota has a few requirements for who can make a will.
- Age: A testator is 18 years of age or older.
- Sound Mind: A testator has a sound mind meaning the testator knows what property they own, who their natural heirs are, and understands how they want to distribute their property.
The testator must have a sound mind at the time they make and sign their will. South Dakota residents with concerns about if they can make a will should consult with an estate planning attorney for legal advice.
Does South Dakota Have a Statutory Will?
No. South Dakota does not have a statutory will, meaning a set form you must use. You may create your own will or hire an attorney. Many choose to make a will using online resources such as FindLaw Legal Forms and Services that help you draft a will conforming to South Dakota law.
What Types of Wills Does South Dakota Accept?
Most wills are typed or printed and signed by the testator. However, other types of wills may or may not be acceptable in South Dakota.
- Handwritten Will: A handwritten or holographic will is entirely written and signed by the testator without witnesses. South Dakota does not accept holographic wills of this kind. But the will is valid if it’s in the testator’s handwriting and signed by the testator in front of two witnesses according to state law.
- Oral Will: An oral or spoken will, called a nuncupative will, is not valid in South Dakota. All wills must be in writing.
- Electronic Will: An electronic will is a will written and stored electronically or signed, witnessed, or notarized through electronic means. Currently, South Dakota does not allow electronic wills.
Although you could use a handwritten will with witnesses, you may want a printed will to avoid confusion about your handwriting and your wishes.
Can I Make My Own Will in South Dakota?
Yes. You do not have to use an attorney to draft your will. If you have a simple estate, know what property you own and who you want to receive the property, then you are ready to make your will. The advantage of using an online will drafting service such as FindLaw Legal Forms and Services is that you can easily update it. For example, if there is a death of a beneficiary, birth of a child, or divorce, you can revoke your original will and create a new will without having to make and amendment or codicil.
How Do I Make My Will Valid in South Dakota?
To make sure your will is valid in South Dakota, you must comply with the probate laws. Your will should meet the following requirements:
- Signature: The testator must sign their will or direct someone to sign for them in the testator’s presence.
- Witnesses: Two competent witnesses must sign the will in the testator’s presence. A competent witness is someone who can act as a witness, meaning they could testify in court. Avoid using interested witnesses, which is a witness that benefits from your will. Although it does not invalidate your will or the gift to them, your will may face challenges based on undue influence.
- Notary: The testator does not need a notary to attest to their signature unless using an optional self-proving affidavit.
- Self-Proving Affidavit: You may consider a self-proving affidavit which is a statement you and your witnesses sign attesting that you signed the will properly. This signed and notarized affidavit makes a self-proved will, so your witnesses do not have to testify in court as to the will’s authenticity.
Can I Disinherit My Spouse in South Dakota?
No. You cannot disinherit your spouse unless they waive their rights to your estate through a pre-marital agreement. In South Dakota, a surviving spouse may claim an elective share of your estate as well as occupy the homestead, receive a reasonable family allowance and share in certain exempt personal property. An elective share is a part of a decedent’s estate that a spouse may claim if left out of the will. This elective share is calculated based on the length of your marriage.
Can I Disinherit My Children in South Dakota?
Your children do not have a right to inherit from you. However, minor children may have a right to live in the homestead until they become of age as well as share in a reasonable family allowance and certain exempt personal property. If you want to disinherit a child, you should state it expressly in your will with your reasons for doing so otherwise a court may determine that you left out your child’s name by mistake.
What Estate Planning Documents Should I Have in South Dakota?
While a will is a helpful tool to administer your estate during probate proceedings, other estate planning documents help you during your lifetime.
- Power of Attorney. In a power of attorney, you name someone you trust as your agent to handle your financial matters. They have a fiduciary duty to act in your best interests. You may do this for convenience if you travel frequently or only when you are incapacitated and can’t manage your finances. You decide what powers to grant and when the power of attorney begins and ends.
- Health Care Directive. A health care directive or living will allows you to specify what life-sustaining measures you want or don’t want when you have an end-stage illness or terminal condition. You may also name someone to receive your medical information and make health care decisions if you cannot.
Fortunately, making a valid will and creating other South Dakota estate planning documents is easy with online estate planning templates.