Probate Law

Probate is the procedure by which a will is proved to be valid or invalid; though in current usage this term has been expanded to generally refer to the legal process wherein the estate of a decedent is administered.

Generally, the South Dakota probate process involves collecting a decedent’s assets, paying creditors, paying necessary taxes and expenses, and distributing property to heirs. These activities are carried out by the executor or administrator of the estate, usually under the supervision of the probate court or other court of appropriate jurisdiction and in most cases with the guidance of a probate lawyer.

When someone dies in South Dakota, that person’s estate may need to go through the probate process in order to properly administer the estate. The probate administration of a Decedent’s estate involves:

Identifying the estate assets

Paying any debts owed by the decedent at the time of death

Distributing the remaining assets to the decedent’s heirs or beneficiaries under a will or under the laws of intestate succession.

In addition, the administration of the estate involves:

Paying any taxes that may be owed as a result of the death

Pursing any claims against third parties that are owed to the estate

Determining the identity of the decedent’s heirs (if without a will)

The Probate Process

Initiating the probate process is generally very easy in South Dakota. In most cases, the process begins with simply filing documents with the probate court to get the process started. From there, the steps to have an executor appointed and to have the estate opened will be easy to navigate if you are represented by a South Dakota probate attorney who is knowledgeable in this area.

However, before the process is initiated, you and your lawyer should discuss the various types of probate and any alternatives that may exist. By understanding all of your options, you may be able to avoid some part or all of the probate process, and you may be able to save time and money if your case does not require a full probate administration.

Types of Probate

South Dakota offers essentially three (3) mechanisms for administering an estate:

Informal probate

Formal probate

Small estate (less than $50,000)

Each of these methods of probate has very distinct characteristics and very specific applications under the law. Understanding the types of probate will aid you in understanding which methods are available to you and which one will accomplish your goals in the best manner.

Role of the Executor

In South Dakota, an executor has very specifically defined responsibilities to fulfill in the course of administering an estate. Before accepting the responsibility of becoming an executor, one should fully understand those responsibilities because failure to fulfill those obligations may subject the executor to personal liabilities to the heirs or beneficiaries of the decedent’s estate. Proper advice regarding these responsibilities is essential when serving as the executor.

Tax Issues

Most clients who need help with a probate matter have questions regarding the tax ramifications related to the probate case. These questions may include:

Issues related to the decedent’s final tax return

The estate tax return

Income tax returns for the estate

Income tax consequences to the beneficiaries of the estate

These issues can have far-reaching and complex implications. However, an executor (generally with the assistance of his/her attorney and accountant) has the responsibility of making sure that all of the appropriate tax returns are filed for the estate.

It is important that:

An executor understand what is required and

An executor retain an attorney who has the appropriate knowledge of these matters to assist them in fulfilling their tax-related duties to the estate

Alternatives to probate
In some instances, an estate does not contain the level of assets or other issues requiring formal or informal probate of the estate to transfer the Decedent’s assets to his heirs. In those instances, South Dakota law has alternatives to the formal or informal methods of probate. Although they may not be available in all cases, the alternative methods can generally reduce the amount of time and expense involved, or the necessity of going through probate.

Avoiding Probate
In recent years and in many states around the country, people are bombarded with messages that they need to avoid probate at all costs. As a result, various tools have been developed to assist clients with this goal.

In many states, the probate process is costly and time-consuming, which has necessitated some of the efforts to avoid probate.

Although the probate process in South Dakota may be easy and uncomplicated, a couple of mechanisms exist which will assist a client in avoiding probate. Specifically, the:

Revocable living trust

Payable on death or joint tenancy accounts may provide the ability to avoid probate.

Because many pitfalls do exist, anyone considering these avenues should fully understand them.

If you need legal advice about South Dakota probate law, please call our South Dakota probate attorneys at ((605) 692-4277, or feel free to contact us through our contact form. Either way, we’re happy to help.