Comprehensive guide to writing a Last Will and Testament South Dakota

A Last Will and Testament in South Dakota is an important legal document that can help distribute a person's real estate property as per his wishes. It states how the real and personal property owned by the testator or the person making the Will should be distributed upon his death.

South Dakota law allows testators to distribute property to their loved ones, trust, or charity and name a personal representative to carry out the instructions in the Will.

Why do you need to write a Will in South Dakota?

Making a Last Will and Testament is not a legal requirement in South Dakota. However, without a valid Last Will, South Dakota law of intestacy or inheritance law will be invoked.

The distribution of property under intestacy laws may not always be as per the wishes of the deceased person. This is why writing a Last Will and Testament is usually advisable.

Furthermore, a Last Will and Testament can allow testators to open trusts for loved ones or pets, make charitable contributions, etc.

What will happen if you die without a Will in South Dakota?

When a person dies without a Will in South Dakota, the intestacy law is invoked. The laws of intestacy in South Dakota state that the surviving spouse and children will inherit the deceased person's entire estate.

In case of no surviving spouse or children are found, the property will be handed over to grandchildren or parents. In the absence of grandchildren or parents, the court will further look for other distant relatives like siblings, cousins, grandparents, etc.

The state will take over the estate if the court exhausts all relatives by blood or marriage.

What are the requirements to write a valid Will in South Dakota?

There are a few requirements to make a valid Will in South Dakota.

A testator is required to be of a minimum of 18 years of age and of sound mind to make a Will.

A "sound mind" refers to a person who has not been deemed to be incompetent previously.

Furthermore, the testator must sign the legal document before two witnesses. South Dakota law allows beneficiaries to serve as witnesses of the Will.

What can be included in a Will in South Dakota?

The following can be included in South Dakota's Last Will and Testament.

• Real and personal property distributions to loved ones
• Legal guardian to care for minor children
• A person to handle property for minor children
• Charitable contributions
• Trusts
• Care for pet
• A personal representative or an executor

Naming an executor or a personal representative is a necessary step in creating a Will in South Dakota. A personal representative is responsible for ensuring the instructions written in the Will are carried out as per the wishes of the testator.

If an executor is not named in the Will, the probate court appoints someone else to do the job.

Furthermore, a Last Will and Testament is referred to after the testator's demise. This is why instructions for medical treatment and end-of-life care should not be included in a Last Will and Testament. Such instructions are to be included in a Living Will.

What are the steps to write a Will?

The following are the steps testators must follow to write a Will in South Dakota.

• Determine the properties to be included in the Will
• Decide on designating beneficiaries to the Will
• Determine a guardian for minor children, if any, and a person to handle property for them
• Decide to appoint an executor to the Will
• Write the Will and sign it in front of two witnesses
• Keep the Will in a safe place

Types of Wills accepted in South Dakota

In South Dakota, Last Will and Testament should be in writing. It means it must be on actual paper rather than video, audio, or any other digital format.

Testators may use a typewriter or a computer to type and print a Will. Furthermore, it must be signed by the testator and two witnesses in the conscious presence of the testator.

If the testator cannot sign the Will himself, he may direct someone to sign it on his behalf in his conscious presence and under his directions.

In case a Will was made in other states, the Will may be recognized in South Dakota if the legal requirements of the state were followed.

Holographic Wills

South Dakota accepts holographic or handwritten Wills, provided it is written and signed by the testator in his handwriting.

A holographic Will is not required to be witnessed.

Do you need an attorney to make a Will in South Dakota?

In South Dakota, consulting an attorney to make a Will is not legally required. However, testators may seek advice from professionals in case of doubts or complications.

Do you need to notarize a Will in South Dakota?

In South Dakota, notarizing a Will is not a legal requirement. However, it allows testators to go to a notary and sign an affidavit to make the Will self-proving.

A self-proving Will simplifies the probate proceeding since the court is not required to contact the witnesses of the Will.

What is the probate process in South Dakota?

Probate is a necessary process in South Dakota, where the court determines asset distribution and other stipulations of the Will.

After a Will has been proven in the probate court, the executor of the Will will file tax returns and pay off any debts or taxes owed. Further, the executor may look into the estate plan and follow the instructions mentioned in the Will.

A probate process in South Dakota should be open for a minimum of four months once the creditors have been notified to claim. However, going through the process may take longer.

How to avoid probate in South Dakota

To avoid probate, testators may create a living trust, having assets with joint owners and designating beneficiaries.

How to change a Will in South Dakota

To change a Will in South Dakota, testators can simply add an amendment or a codicil to the existing Will. The testator must follow the same procedures as creating a new Will to finalize the changes.

How to revoke a Will in South Dakota

To revoke a Will in South Dakota, testators can simply burn, tear or destroy the Will or instruct someone else to do so on his behalf. Testators can also revoke a Will by creating a new Will stating it revokes the old Will or adding instructions that contradict the old Will.

In the case of two valid Wills, the old Will is presumed to be revoked if the provisions in the new Will distributes the entire estate of the testator.

If the provisions in the new Will do not distribute the entire property of the testator, it is considered an addition to the old Will. In such a case, the executor is required to carry out the instructions in both the Wills and, in case of a contradictory provision, the instructions of the new Will must be followed.

What other things must you know about writing a Will in South Dakota?

Writing a Will in South Dakota does not allow a testator to distribute all his properties. There are a few exceptions to the right to distribute property.

For instance, a testator may not be able to distribute real estate held in joint tenancy with the right to survivorship.

In case of complications or doubts, it is best to consult an attorney to seek financial advice to make informed decisions.

Closing Thoughts

Writing a Last Will and Testament is one of the most important legal documents that a person can make. It ensures his wishes regarding real and personal property distribution and care for loved ones.

Writing a Will is an important step that, when executed correctly, can secure the future of your loved ones after your demise.