What happens to your assets when you\ndie? Depending on how your property is titled, they become part of your estate,\nand are subject to administration in probate. Probate is the legal process of\nsettling a decedent\u2019s estate and distributing assets to those designated to\nreceive them, whether through devise by will or by laws of intestate\nsuccession. <\/p>\n\n\n\n\n\n\n\n
South Dakota has enacted the Uniform\nProbate Code, codified as part of the South Dakota Codified Laws at Title 29A.\nThe Uniform Probate Code is a set of laws developed by the Uniform Law\nCommission to standardize probate procedures across states.<\/p>\n\n\n\n
The necessity for probate depends upon\nthe overall size of the estate and the way the decedent held title to property.\nConsidering the intentions in the event of one\u2019s death is part and parcel of\nproper estate planning, and can facilitate an efficient probate process. Typically,\nproperty that a decedent owned as an individual is subject to probate. Property\ntitled with a survivorship right or beneficiary designation transfers outside\nof probate. <\/p>\n\n\n\n
Probate proceedings may follow formal or\ninformal proceedings, the former requiring more direct court oversight. Formal\nprobate proceedings are governed by chapter 29A-3, Part 4; informal proceedings\nare governed by Part 3. Part 5 probate, or supervised administration, may be\nappropriate for circumstances requiring mediation. Consult a lawyer with\nquestions.<\/p>\n\n\n\n
At death, a decedent\u2019s property devolves\nto his or her devisees (those named in a will to receive the decedent\u2019s property)\nor heirs (those entitled to receive the decedent\u2019s property when the decedent\ndies intestate, or without a will) subject to claims, exemptions, a surviving\nspouse\u2019s elective share, and the personal representative\u2019s right to take\npossession for purposes of administration (SDCL 29A-3-101, 29A-3-709.). Any\npart of the estate not disposed of by will is devised by South Dakota\u2019s laws of\nintestate succession, located under Chapter 29A-2.<\/p>\n\n\n\n
A personal representative (PR) is the\nfiduciary entrusted to settle the decedent\u2019s estate, and may be referred to as\nan executor when named by the decedent\u2019s will, or an administrator when\nselected by the court to administer an intestate estate. When the PR of an\nestate holds title to property, he holds it in a fiduciary capacity for the\npurposes of administration (43-4-2).<\/p>\n\n\n\n
To legally transfer property devised by\na will, the will must be delivered to the probate court and proved valid\n(29A-3-102). The venue for opening probate is typically the probate court in\nthe county where the decedent maintained permanent residence (29A-3-201). If\nthe decedent owns real property in another jurisdiction, then ancillary probate\nis required. <\/p>\n\n\n\n
The court validates a will by issuing an\norder of probate. Probate requests may be combined, meaning that a petition for\nprobate and appointment of a personal representative may be simultaneous\n(29A-3-107). The requirements for an interested person\u2019s petition for informal\nprobate in testate and intestate estates are codified at 29A-3-301.<\/p>\n\n\n\n
Administration of the estate begins when\nthe court issues letters to the PR (29A-3-103). Letters are a document\nevidencing the appointment of a personal representative to the estate, and\ngranting the PR the power and the duty to administer the estate. The priority\nfor appointment of a personal representative is established by 29A-3-203, with\ntop priority to a person determined by a probated will, proceeded by a\nsurviving spouse devisee. <\/p>\n\n\n\n
Notice of appointment in informal\nproceedings is only required when all persons with prior or equal right to\nappointment have not filed a waiver with the court (29A-3-310). The law\nrequires the PR to furnish written information concerning probate to the\ndecedent\u2019s heirs and devisees upon appointment (29A-3-306). Interested persons may\nfile a demand for notice with the court, which means they will receive notice\nbefore probate filings and proceedings (29A-3-204). Otherwise, orders\nauthorizing acts by a personal representative, except as restricted by letters,\nare not required (Title Standard 15-13).*<\/p>\n\n\n\n
The PR is required to give notice to\ncreditors within four months of appointment (29A-3-801). Procedures for\nhandling creditors\u2019 claims are codified at 29A-3-801 et seq. Once appointed,\nthe PR \u201chas the same power over the title to property of the estate that an\nabsolute owner would have, in trust however, for the benefit of the creditors\nand others interested in the estate,\u201d which \u201cmay be exercised without notice,\nhearing, or order of court.\u201d (29A-3-711).<\/p>\n\n\n\n
Transfers of property to a decedent\u2019s\ndevisees or heirs cannot be completed until the applicable taxes and valid\nclaims on the estate have been paid by the PR. The PR may need to sell real\nproperty to make payment of claims on the estate, to cover expenses of\nadministration, or to liquidate the estate to facilitate easier distribution.\nSDCL 29A-3-715 entitles the PR to sell real property and execute deeds of\nconveyance, unless the decedent\u2019s will or an order in formal probate\nproceedings restricts such action, subject to the priorities stated in 29A-3-902\n(abatement). <\/p>\n\n\n\n
South Dakota Title Standard 15-05\nfurther states that a decedent\u2019s property devolves to heirs and devisees,\n\u201csubject to claims and administration\u2026which includes the authority of the PR to\nconvey.\u201d Conveyances under probate require a duly recorded PR deed or a duly\nrecorded order of complete settlement distributing specifically described real\nproperty to heirs or devisees in specified shares to complete the chain of\ntitle (Title Standard 15-03).<\/p>\n\n\n\n
To transfer title following a sale, the\nPR executes a deed. When recorded, the deed transfers an estate in fee simple\nto the grantee with covenants that, at the time of conveyance, the estate is\nfree from encumbrances done, made, or suffered by the grantor, or any person\nclaiming under him, and that, prior to executing the conveyance, the grantor\nhas not conveyed the estate to any other person (43-25-10). Purchasers entering\ntransactions with PRs are protected under 29A-3-714.<\/p>\n\n\n\n
In a properly executed PR deed, the\ngrantor is the duly appointed, qualified, and acting PR of the estate. To retitle\nthe property, include the grantee\u2019s name, marital status, address, and vesting\ninformation. The deed should reference the decedent, the county of probate, and\nthe case number assigned to the estate by the court. <\/p>\n\n\n\n
As with any conveyance of an interest in\nreal property, the deed recites the consideration the grantee is making for the\ntransfer; the full legal description of the subject parcel; and the derivation\nof title. Any restrictions should be noted on the face of the deed, along with\nany exemption claimed to the transfer fee imposed by SDCL 43-4-21. Finally, the\nform must meet all state and local standards for recorded documents. The PR\nmust sign the deed in the presence of a notary public before recording in the\nRegister of Deeds\u2019 office of the relevant county.<\/p>\n\n\n\n
After claims on the estate and expenses\nof administration have been paid, the PR may distribute the estate. The PR\nexecutes a deed of distribution \u201cas evidence of the distributee\u2019s title\u201d\n(29A-3-907). A recorded deed of distribution is \u201cconclusive evidence that the\ndistributee has succeeded to the interest of the decedent\u2026as against all\npersons interested in the estate,\u201d though the PR may recover assets in the case\nof improper distribution (SDCL 29A-3-908, Title Standard 15-06). For future\npurchases of property distributed from an estate, the chain of title is\ncompleted by proof of unrestricted letters of the PR in effect on the date of\nconveyance (Title Standard 15-04).<\/p>\n\n\n\n
Apart from meeting all requirements of form and function for documents affecting title to real property, the deed of distribution should identify the classification of the named distributees (either devisees under a will or heirs in an intestate estate), and name each distributee and the percent of the decedent\u2019s interest in the subject property he or she is inheriting, along with each distributee\u2019s address. When two or more heirs or devisees are entitled to distribution, they may petition for partition of property pursuant to 29A-3-911. Distributions from an estate are exempt from transfer fees pursuant to SDCL 43-4-22(10).<\/p>\n\n\n\n
South Dakota Probate Related Forms:<\/p>\n\n\n\n
The information provided here is not a\nsubstitute for legal advice and does not address specific probate situations.\nConsult an attorney licensed in the State of South Dakota with questions regarding\nprobate deeds and probate procedures in that state, as each situation is\nunique.<\/p>\n\n\n\n