Everything You Need to Know About the Last Will and Testament in South Dakota
The last will and testament is the foundation of estate planning. With it, you take from the state the power to distribute your assets or to order custody of your kids. The will, as long as you prepare it according to the requirements of the law of code section 29A-2-501, et seq., will give you total control over who inherits your estate and how much of it they get.
But, not to be confused with the living will, the last will is only enforceable upon your demise. The living will, on the other than, is only enforceable while you are alive and incapacitated or disabled. The living will could also go by the advance health care directives.
What should be in the will?
As per the requirements of the law, you have to be a competent adult to prepare a last will and testament. Using a free South Dakota last will and testament form downloadable online, you can sign the will once you have all the details of the will as per your wishes. The signing of the will should take place in the presence of 2 or more adults or at the notary public.
If you have kids, the will should name a guardian for the kids. The guardian will be responsible for your minor kids upon your death if the other parent is unavailable or if you both die at the same time. Besides caring for the kids, the guardian may also have to protect the inheritance you leave your kids. So, consider the age and the health status of the person you are considering and talk to them about it. You might want to appoint an alternate guardian in case something happens and the primary guardian is unable to take care of your kids.
Appoint an executor
The executor or the personal representative refers to the person responsible for the management of the estate (payment of bills and taxes), and the distribution of the assets. It should be someone you trust wholly. Note that the executor must file the will with the probate court soon after your death. You may want to appoint an alternate executor too.
You need to name all your beneficiaries including but not limited to your kids, spouse parents, friends, a charitable organization, or even a state department. As mentioned above, the will gives you control over who makes it to the list of your heirs.
Create testamentary trusts
If you are interested in the welfare of your kids and you’d like to protect your assets in the best way possible, you should create testamentary trusts in the will. The trusts are irrevocable and creating them in the will ensures that your assets safe.
Some of the trusts you could create include an education trust which is effective in the accumulation of assets, the dynasty trust which keeps your assets in the family, the disclaimer trust that shelters the assets inherited by your spouse or the credit shelter trusts which protects your large estate from taxation and creditors. If you have a child or dependent with special needs, you could set up a special needs trust.
Business protection and succession
A last will and testament is essential if you are looking for a way to keep the business in the family.
As mentioned above, the executor has to present your will with the probate court where it will be validated. Once the court validates the will, the estate is open, and the executor has to collect and protect the decedent's property after which they will distribute the assets as per the wishes of the decedent. Note that the beneficiaries have to sign that they have received their portion of the inheritance as indicated in the will.
For this reason, we recommend that you indicate how much every beneficiary gets in percentages, dollar value, or you could mention the specific items bequeathed.
If your estate is worth less than $50,000, the state will offer a simple probate process to oversee the distribution of the assets.
Note: the state accepts holographic or wholly handwritten will in unique circumstances.
What happens if you don’t create a last will and testament?
Without a free last will and testament in South Dakota, the state will ignore your wishes and distribute your assets by invoking the intestacy laws. Under the intestacy laws, the following things happen:
Your surviving spouse will inherit your entire estate. But if you have kids from someone else other than your spouse, your spouse will inherit the first $100,000 of the estate and half of the remainder. And in the absence of a surviving spouse, kids, or parents, your siblings and grandparents will inherit your estate.
Which property is exempted from distribution?
- The share of a surviving kid not in the will
- Joint tenancy property
- Elective share of the decedent's augmented estate
- Shares for the surviving kids, though this applies only to an extent
- Homestead allowances for the spouse.
Can you change the will?
Yes. You only need a codicil for the legal amendment to be done as is in the original will
Can you revoke a will?
Yes. You can revoke it by executing the subsequent will or destroying it with the intention to revoke its directives.
Do you live in Sioux Falls, Rapid City, Aberdeen, Brookings, or any other city in South Dakota? You could use our free last will and testament forms to create your will today.