4.04.25 Decedent's Estates

South Dakota - Decedent’s Estates

 ·         Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual?  If so, please identify and define such terms.  Provide statutory citations. 

The Uniform Probate Code, enacted by ch. 196, SL 1974, effective January 1, 1976, was repealed by § 2, ch. 175, SL 1976, and by § 3, ch. 177, SL 1976. The repeal was effective July 1, 1976. Section 1 of ch. 175 and § 2 of ch. 177 provided for the promulgation of rules by the Supreme Court for the orderly transition of actions started pursuant to the procedures set forth in the Uniform Probate Code to the procedures set forth in Titles 29 and 30.

 

Terms may vary, but tend to match the uniform probate law in many states.

 
  • Is there a statutory time limit for (a) probating a decedent’s will, or (b) opening administration of an Intestate’s estate?  If so, specify for both situations.  Provide statutory citations.
 

SDCL §29A‑3‑108  Probate, testacy and appointment proceedings ‑‑ Ultimate time limit.

 No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than three years after the decedent's death, except 1) a previous proceeding was dismissed; 2) an absentee for whom a conservator was appointed; 3) some situations where a proceeding to contest the will is instituted; 4) certain actions may be brought to confirm title in estate assets or establish an instrument to direct or control the ownership of property. The three year limitation does not apply to proceedings to construe probated wills or determine heirs of an intestate. 
  • Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property:  Community, separate, tenancy by the entirety, dower, curtesy, etc.?  If so, summarize.  Provide statutory citations.
 SDCL §29A-2-112 Dower and curtesy abolished.  No other provision. 
  • Does your state recognize joint tenancies?  If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant.  Provide statutory citations.
 

SDCL §21-44-2  In all cases of joint tenancy in lands, a copy of the record of the death of any such joint tenant, duly certified by any officer who is required by the laws of the state or county in which such record is made, to keep a record of the death of persons occurring within the jurisdiction of such officer, may be recorded in the office of the register of deeds of the county in which such lands are situated or in the proper office for filing as to such personal property. The record of such certified copy shall be prima facie evidence of the death of such person and the termination of such joint tenancy. There shall also be recorded at the same time, a certified copy of an order made by the circuit court having jurisdiction determining that there is no inheritance tax due on the estate of the deceased person or an order made by said court reciting that the tax due on the estate of said deceased person or on a particular transfer has been determined and proof of the payment of the tax has been filed in the office of the clerk of the court. In order to identify the property affected by the death of such person, the person causing said certificate to be recorded shall attach thereon an affidavit setting out the legal descriptions of the property involved.

 
  • Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions?  Provide statutory citations.
 

SDCL §29A-2-202, et seq. provides for an elective share for the spouse in the augmented estate determined by the length of time the decedent and the spouse were married to each other.  SDCL §29A-301 and –302 provide for omitted children and spouse.  SDCL §29A-2-401, et seq., provides for homestead allowance and family allowance.

 
  • Summarize the steps required for a testate administration.  Provide statutory citations.
 

To prove transfer of property or nominate an personal representative, a will shall be declared to be valid by an order of informal probate, or and adjudication of probate by the court.  SDCL §29A-3-102

 Appointment of a personal representative by order of the court or clerk and an issuance of letters which commences administration of the estate.  SDCL 29A-3-103 

Determination of creditors’ claims.  SDCL §29A-3-801 et seq.  Distribution SDCL §29A-3-901 et seq.  Closing of estate SDCL §29A-3-1001 et seq.

 
  • Summarize the steps required for an intestate administration.  Provide statutory citations.
 

Same as testate administration.  Determination of creditors claims.  Determination of Heirship and distribution, closing of estate.

 
  • Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship)  If so, describe the procedure and furnish a sample of any forms.
 

No.

 

·         Are there any short or abbreviated probate procedures provided for by statute?  If so, summarize.  Provide statutory citations.

 

No.

   
  • Are there any other probate or alternative probate procedures available in your state that haven’t been described?  If so, summarize.  Provide statutory citations.
 

No.

 
  • Does your state statutes provide for an “inheritance” tax?  If so, is it based on (a) an heir’s share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis?  Provide statutory citations.
 

South Dakota provides for an inheritance tax in Statutes Title 10, ch, 10-40.  The tax is based, subject to allowable exemptions, on the beneficial interest of the person entitled to it.  SDCL §10-40-21.  The tax rates in § 10-40-21 are increased on large estates (clear value of such property or interest exceeds $15,000).  SDCL §10-40-22.

 
  • Does your statutes provide for an inheritance tax lien?  If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien.  Is there a statute of limitations for the inheritance tax lien?  If so, specify.  Provide statutory citations.
 

The inheritance tax imposed shall be an remain and remain a lien upon the property passed or transferred until paid, except where the transfer is by deed or grant in the hands of a bona fide purchaser or encumbrancer without notice or except where the court having jurisdiction over the proceeding shall authorize the waiver of such lien.  SDCL §10-41-68

 

Any inheritance tax due under the provisions of the inheritance tax law of the state of South Dakota from the estates of decedents who have been deceased for twelve years or more, is declared fully paid and any inheritance tax liens on property passed or transferred from the estates of such decedents are declared satisfied.  SDCL §10-41-81

 
  • Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration.  Provide statutory citations.
 

SDCL §29A-3-711 and §29A-3-715 (23) enumerates power of personal representative.  It includes power of sale of lands.

 
  • Can a personal representative for a testate administration sell real property of the estate without obtaining a court order?  Yes.  If so, please identify any requirements?
 Same as bulleted item above. A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and, except as otherwise specified or ordered in regard to a supervised personal representative (emphasis added), shall do so without adjudication, order, or direction of the court, but the personal representative may invoke the jurisdiction of the court, in proceedings authorized by this code, to resolve questions concerning the estate on its administration.  SDCL §29A-3-704 
  • When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate?  Summarize the steps of such procedure.  Provide statutory citations.
 When the estate has been converted to a formal or supervised proceeding, then they must simply petition for an order of sale.

We will require a court order for any transaction where the personal representative has a conflict of interest.
 SDCL §29A-3-713  Any sale or encumbrance to the personal representative, the personal representative's spouse, agent or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless:
(1) The will or a contract entered into by the decedent expressly authorized the transaction; or
(2) The transaction is approved by the court after notice to interested persons. 
 
  • Does your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)?  If so, summarize the provisions and procedures.  Provide statutory citations.
 South Dakota provides for acts of foreign personal representatives appointed in wills probated in foreign jurisdictions.  A personal representative must file certified copies of the appointment and of any official bond with the court. in this state in a county in which property belonging to the decedent is located.  SDCL §29A-4-204A domiciliary foreign personal representative, who has complied with §29A-4-204, may exercise as to assets in this state all powers of a local personal representative and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally, except that no will is effective to prove the transfer of any property unless admitted to probate in a local proceeding.  SDCL §29A-4-205