Question 1

What makes a will valid in South Dakota?

Accepted Answer

An individual who is 18 or older and of sound mind may make a will. A will that is not a holographic will must be in writing, signed by the testator (or in the testator's name by another person in the testator's conscious presence and at the testator's direction), and signed by at least two individuals who, in the testator's conscious presence, witnessed either the signing or the testator's acknowledgment of the signature. Intent that a document be a will may be shown by outside evidence.

Question 2

Is a handwritten will valid in South Dakota?

Accepted Answer

Yes. A will is valid as a holographic will, whether or not it is witnessed, if the signature and the material portions of the document are in the testator's handwriting. For a holographic will, intent may be shown by outside evidence, including portions of the document that are not handwritten.

Question 3

Does a will need to be notarized in South Dakota?

Accepted Answer

Yes. A will may be made self-proved either when it is signed or at any later time, by the testator's acknowledgment and the witnesses' affidavits made before an officer authorized to administer oaths (such as a notary public), with the officer's certificate and seal. The statute sets out suggested forms for both the simultaneous and the later self-proving affidavit.

Question 4

Who inherits if someone dies without a will in South Dakota?

Accepted Answer

Surviving spouse: the entire estate if the decedent left no descendants or if all of the decedent's surviving descendants are also descendants of the spouse; if any of the decedent's descendants are not the spouse's descendants, the spouse takes the first $100,000 plus one-half of the balance. The rest (or everything, if there is no spouse) passes to descendants by representation; if none, to the parents equally (or the surviving parent); if none, to the parents' descendants (brothers, sisters, nieces and nephews) by representation; if none, half to the paternal and half to the maternal grandparents or their descendants (one side takes all if the other has no one).

Question 5

What is a surviving spouse entitled to in South Dakota?

Accepted Answer

A surviving spouse may elect to take a share of the augmented estate (which includes certain nonprobate transfers) instead of what the will provides. The percentage depends on the length of the marriage: 3% after one year, rising by 3% a year to 30% at 10 years, then by 4% a year to 50% for a marriage of 15 years or more. A spouse married less than one year receives only the supplemental amount: if the spouse's total from the elective share and certain other sources is under $50,000, the spouse receives the difference. The petition must be filed within nine months after death or four months after the will is admitted to probate, whichever is later. South Dakota is not a community property state.

Question 6

What is the small estate limit in South Dakota?

Accepted Answer

Personal property: 30 days after death, a successor may collect money owed to the decedent and the decedent's personal property (including bank accounts and securities) by affidavit if the entire estate, wherever located, less liens and encumbrances, does not exceed $100,000, no application or petition for appointment of a personal representative is pending or granted anywhere, and the decedent owes nothing to the Department of Social Services for nursing home or other institutional medical care. Real property: a separate affidavit may be filed with the register of deeds in each county where the land is located, at least 60 days after death, if the decedent's interest in all South Dakota real property is worth no more than $50,000 (non-agricultural land may be valued from the assessment rolls; agricultural land at fair market value), signed by all claiming successors and accompanied by a certified death certificate.

Question 7

Is there a simplified probate process in South Dakota?

Accepted Answer

Besides the two small estate affidavits ($100,000 personal-property estate; $50,000 South Dakota real property), South Dakota follows the Uniform Probate Code: estates are ordinarily administered without court supervision after appointment of a personal representative, and bond is generally not required unless the court finds a bond is in the best interests of the estate.

Question 8

How does probate work in South Dakota?

Accepted Answer

1) Apply or petition to the circuit court for probate of the will and appointment of a personal representative (informal or formal proceedings). 2) Within 14 days after appointment, mail information to heirs and devisees (including the personal representative's name and address, whether bond was filed, and a copy of any admitted will) and give written notice, with the decedent's Social Security number, to the Department of Social Services, certifying to the court that it was received. 3) Publish notice to creditors once a week for three successive weeks and mail notice to known creditors. 4) Prepare an inventory within six months after appointment or nine months after death, whichever is later, and send a copy to any interested person who asks (filing it with the court is optional). 5) Pay claims and expenses, distribute the estate, and close.

Question 9

How long do creditors have to file claims against an estate in South Dakota?

Accepted Answer

If notice to creditors is published (once a week for three successive weeks), claims must be presented within four months after the first publication. Known or reasonably ascertainable creditors must receive written notice and must present claims within four months after the personal representative's appointment or 60 days after the written notice is mailed or delivered, whichever is later. In all cases, claims arising before death are barred if not presented within three years after the decedent's death.

Question 10

Who can be an executor in South Dakota?

Accepted Answer

Priority for appointment as personal representative: a person named in (or nominated under) a probated will; the surviving spouse who is also a devisee; other devisees; the surviving spouse; other heirs; and, 45 days after death, any other qualified person. A person under 18, a person found unsuitable by the court in formal proceedings, or a bank or trust company not qualified to exercise trust powers in South Dakota may not serve. The statute has no residency requirement, so nonresidents may serve. Bond is generally not required unless the court finds it is in the best interests of the estate.

Question 11

Does South Dakota allow transfer-on-death deeds?

Accepted Answer

Yes. South Dakota has adopted the Uniform Real Property Transfer on Death Act. A transfer on death deed must contain the essential elements and formalities of a recordable deed, state that the transfer occurs at the owner's death, and be recorded with the register of deeds in the county where the property is located before the owner dies. Notice, delivery, acceptance and consideration are not required, and the deed is revocable, but only by a later recorded instrument (a new transfer on death deed, a revocation, or a deed that expressly revokes it) that is acknowledged and recorded before death. After death, the beneficiary records a sworn affidavit of confirmation with the register of deeds, with a certified death certificate and a statement that the Department of Social Services was notified of the death. The statute includes optional forms for the deed, revocation and affidavit of confirmation.

Question 12

What does a quitclaim deed need to be valid in South Dakota?

Accepted Answer

Before a deed can be recorded, the person signing it must acknowledge it (for example, before a notary public), or its execution must be proved as provided by law. Deeds are recorded with the register of deeds of the county where the land is located. A real estate transfer fee of 50 cents per $500 of value (or fraction) is paid by the grantor and collected by the register of deeds; exemptions include absolute gifts, transfers for no consideration, nominal-consideration transfers between spouses or between parent and child, and transfers under a decree of distribution in an estate. A Certificate of Real Estate Value (Form PT 56) must be filed with any deed (including quitclaim deeds); probate decrees are exempt.

Question 13

What are the requirements for a power of attorney in South Dakota?

Accepted Answer

South Dakota has adopted the Uniform Power of Attorney Act. A power of attorney must be signed by the principal (or by another person in the principal's conscious presence at the principal's direction), and the signature must be acknowledged before a notary public or other officer authorized to take acknowledgments. Witnesses are not required. A power of attorney is durable only if it contains words such as 'This power of attorney shall not be affected by disability of the principal' or 'shall become effective upon the disability of the principal,' or similar words showing that intent. A statutory form may be used.

Question 14

What are the requirements for a health care directive in South Dakota?

Accepted Answer

A competent adult may sign a living will declaration about withholding or withdrawing life-sustaining treatment; it must be signed by the declarant (or another at the declarant's direction) and either witnessed by two adults or notarized, and must state the person's wishes about artificial nutrition and hydration. The statute provides an optional sample form. A durable power of attorney for health care, naming an agent to make health care decisions while the person lacks capacity, must be signed by the principal (or another at the principal's direction in the principal's conscious presence) and witnessed by two other adults or a notary public.

Question 15

Does South Dakota have an estate or inheritance tax?

Accepted Answer

No state estate or inheritance tax. South Dakota voters repealed the state inheritance tax effective July 1, 2001, and the state has no estate tax.

Question 16

How do I make a living will in South Dakota?

Accepted Answer

A competent adult may sign a living will declaration governing the withholding or withdrawal of life-sustaining treatment. It must be signed by the declarant (or by another at the declarant's direction) and either witnessed by two adults or notarized by a notary public. The declaration must state the declarant's preferences about artificial nutrition and hydration. The statute provides an optional sample form.

Question 17

How do I make a medical power of attorney in South Dakota?

Accepted Answer

South Dakota uses a durable power of attorney for health care, naming an agent to make health care decisions while the principal lacks capacity. It must be signed by the principal (or by another at the principal's direction in the principal's conscious presence) and witnessed by two other adults or by a notary public. No single mandatory statutory form is required.

Question 18

How do living trusts work in South Dakota?

Accepted Answer

South Dakota has not adopted the Uniform Trust Code; trusts are governed by its own statutes in SDCL Title 55. An express trust is created by words or acts of the trustor indicating with reasonable certainty an intention to create a trust and its subject, purpose and beneficiary, and any express trust concerning real property must also be evidenced in writing. A lawsuit contesting whether a revocable trust (or amendment) was validly created generally must be brought within one year after the settlor's death, or sooner after the trustee sends notice. Property transferred into the trust passes under its terms without probate; property left in the decedent's own name may still need probate or a small estate affidavit.

Question 19

What does an executor have to do in South Dakota?

Accepted Answer

Main duties and deadlines for a South Dakota personal representative: qualify by filing an acceptance of office and any required bond; within 14 days after appointment, give information of the appointment to the heirs and devisees (and give the required written notice to the Department of Social Services); optionally publish a notice to creditors once a week for three successive weeks, requiring claims within four months after the first publication, and mail notice to known or reasonably ascertainable creditors; within six months after appointment or nine months after death, whichever is later, prepare an inventory of the decedent's property at date-of-death fair market value, with encumbrances; pay claims, expenses and taxes; distribute the estate; and close it, for example by filing a verified closing statement no earlier than four months after the original appointment.

Question 20

How do I get letters testamentary in South Dakota?

Accepted Answer

The circuit court issues letters to the personal representative after an application for informal probate and appointment or a petition in a formal proceeding. Priority goes to the person named in the will, then a surviving spouse who is a devisee, other devisees, the surviving spouse, other heirs, and (45 days after death) any other qualified person. Before receiving letters, the personal representative must file an acceptance of office and any required bond; bond is generally not required unless the court finds it is in the best interests of the estate. In a probated estate, South Dakota county treasurers accept a copy of the court papers appointing the personal representative to transfer vehicle titles.

Question 21

Does South Dakota have an affidavit of heirship?

Accepted Answer

South Dakota has a statutory succession affidavit for real estate: sixty days after death, a person claiming to be a successor to the decedent's interest in South Dakota real property may file an affidavit describing the property and the decedent's interest, with a certified death certificate, with the register of deeds in each county where the property is located, if the decedent's interest in all South Dakota real property is worth no more than $50,000 and the other statutory conditions are met. For larger estates, heirs are determined in a formal testacy proceeding, which can result in an order that the decedent died intestate.

Question 22

How can you avoid probate in South Dakota?

Accepted Answer

Non-probate transfers available in South Dakota: (1) Transfer on death deed for real estate, recorded before death, with an affidavit of confirmation recorded after death (SDCL 29A-6-401 to 29A-6-435). (2) Joint accounts belong to the surviving party, and P.O.D. accounts pass to the P.O.D. payee (SDCL 29A-6-104). (3) Transfer-on-death registration of securities, a nontestamentary transfer (SDCL 29A-6-301 et seq., esp. 29A-6-309). (4) Transfer on death beneficiary on a vehicle or boat title with no open liens (SD Department of Revenue). (5) Small estate affidavit for personal property when the estate is $100,000 or less (SDCL 29A-3-1201). (6) Real property succession affidavit for South Dakota real estate worth $50,000 or less (SDCL 29A-3-1203). (7) Revocable living trust.

Question 23

Where can I get a power of attorney form in South Dakota?

Accepted Answer

South Dakota law lets a principal name an attorney-in-fact (agent) with authority to make health care decisions through a durable power of attorney for health care, including consenting to, rejecting or withdrawing consent for any care, service or procedure. It must be signed by the principal, and the signature must be witnessed by two other adults or by a notary public (SDCL 59-7-2.1).

Question 24

How do I search probate court records in South Dakota?

Accepted Answer

Probate is handled by the circuit court ("Court" means the circuit court under the South Dakota Uniform Probate Code, SDCL 29A-1-201). People interested in a decedent's estate may apply to the clerk of court for determinations in informal proceedings or petition the court in formal proceedings (SDCL 29A-3-105). The Unified Judicial System's eCourts service shows a summary of public cases by party name or case number after free registration, and open court records can be viewed electronically on public access terminals at any courthouse in the state.

Question 25

How do I transfer a car title after someone dies in South Dakota?

Accepted Answer

Vehicle titles are handled by the county treasurer for the SD Department of Revenue. If the title names a Transfer on Death beneficiary, the beneficiary applies for a new title with a copy of the death certificate. If there is no probate, an heir or devisee completes an Affidavit of Vehicle Ownership by Succession (Form 1013; used when the estate does not exceed $100,000) for each vehicle, surrenders the South Dakota title (or notes on the affidavit that it is unavailable), and the new owner applies for title; a successor is exempt from motor vehicle excise tax, but a purchaser pays it. If the estate is probated, the personal representative transfers the title, and the county treasurer requires the South Dakota title and a copy of the court papers appointing the representative, plus a title application and fee.

Requirements for a valid will	An individual who is 18 or older and of sound mind may make a will. A will that is not a holographic will must be in writing, signed by the testator (or in the testator's name by another person in the testator's conscious presence and at the testator's direction), and signed by at least two individuals who, in the testator's conscious presence, witnessed either the signing or the testator's acknowledgment of the signature. Intent that a document be a will may be shown by outside evidence. Source: SDCL 29A-2-501; SDCL 29A-2-502
Handwritten (holographic) wills	Yes. A will is valid as a holographic will, whether or not it is witnessed, if the signature and the material portions of the document are in the testator's handwriting. For a holographic will, intent may be shown by outside evidence, including portions of the document that are not handwritten. Source: SDCL 29A-2-502(a), (c)
Self-proving affidavit	Yes. A will may be made self-proved either when it is signed or at any later time, by the testator's acknowledgment and the witnesses' affidavits made before an officer authorized to administer oaths (such as a notary public), with the officer's certificate and seal. The statute sets out suggested forms for both the simultaneous and the later self-proving affidavit. Source: SDCL 29A-2-504

Probate steps	1) Apply or petition to the circuit court for probate of the will and appointment of a personal representative (informal or formal proceedings). 2) Within 14 days after appointment, mail information to heirs and devisees (including the personal representative's name and address, whether bond was filed, and a copy of any admitted will) and give written notice, with the decedent's Social Security number, to the Department of Social Services, certifying to the court that it was received. 3) Publish notice to creditors once a week for three successive weeks and mail notice to known creditors. 4) Prepare an inventory within six months after appointment or nine months after death, whichever is later, and send a copy to any interested person who asks (filing it with the court is optional). 5) Pay claims and expenses, distribute the estate, and close. Source: SDCL 29A-3-705; SDCL 29A-3-706; SDCL 29A-3-801
Simplified probate	Besides the two small estate affidavits ($100,000 personal-property estate; $50,000 South Dakota real property), South Dakota follows the Uniform Probate Code: estates are ordinarily administered without court supervision after appointment of a personal representative, and bond is generally not required unless the court finds a bond is in the best interests of the estate. Source: SDCL 29A-3-1201; SDCL 29A-3-1203; SDCL 29A-3-603; SDCL 29A-3-705
Small estate affidavit	Personal property: 30 days after death, a successor may collect money owed to the decedent and the decedent's personal property (including bank accounts and securities) by affidavit if the entire estate, wherever located, less liens and encumbrances, does not exceed $100,000, no application or petition for appointment of a personal representative is pending or granted anywhere, and the decedent owes nothing to the Department of Social Services for nursing home or other institutional medical care. Real property: a separate affidavit may be filed with the register of deeds in each county where the land is located, at least 60 days after death, if the decedent's interest in all South Dakota real property is worth no more than $50,000 (non-agricultural land may be valued from the assessment rolls; agricultural land at fair market value), signed by all claiming successors and accompanied by a certified death certificate. The real property affidavit (SDCL 29A-3-1203) was added in 2022. Successors who receive property by affidavit must apply it to liens, allowances, funeral and administration expenses, and creditor claims. Source: SDCL 29A-3-1201; SDCL 29A-3-1203
Deadline for creditor claims	If notice to creditors is published (once a week for three successive weeks), claims must be presented within four months after the first publication. Known or reasonably ascertainable creditors must receive written notice and must present claims within four months after the personal representative's appointment or 60 days after the written notice is mailed or delivered, whichever is later. In all cases, claims arising before death are barred if not presented within three years after the decedent's death. Source: SDCL 29A-3-801; SDCL 29A-3-803
Who can be executor	Priority for appointment as personal representative: a person named in (or nominated under) a probated will; the surviving spouse who is also a devisee; other devisees; the surviving spouse; other heirs; and, 45 days after death, any other qualified person. A person under 18, a person found unsuitable by the court in formal proceedings, or a bank or trust company not qualified to exercise trust powers in South Dakota may not serve. The statute has no residency requirement, so nonresidents may serve. Bond is generally not required unless the court finds it is in the best interests of the estate. The bond statute (SDCL 29A-3-603) was amended in 2025. Source: SDCL 29A-3-203; SDCL 29A-3-603
Finding probate court records	Probate is handled by the circuit court ("Court" means the circuit court under the South Dakota Uniform Probate Code, SDCL 29A-1-201). People interested in a decedent's estate may apply to the clerk of court for determinations in informal proceedings or petition the court in formal proceedings (SDCL 29A-3-105). The Unified Judicial System's eCourts service shows a summary of public cases by party name or case number after free registration, and open court records can be viewed electronically on public access terminals at any courthouse in the state. Definition of court: https://sdlegislature.gov/api/Statutes/29A-1-201.html ; proceedings: https://sdlegislature.gov/api/Statutes/29A-3-105.html Source: SDCL 29A-1-201, 29A-3-105; South Dakota Unified Judicial System, Cases and Records

Financial power of attorney	South Dakota has adopted the Uniform Power of Attorney Act. A power of attorney must be signed by the principal (or by another person in the principal's conscious presence at the principal's direction), and the signature must be acknowledged before a notary public or other officer authorized to take acknowledgments. Witnesses are not required. A power of attorney is durable only if it contains words such as 'This power of attorney shall not be affected by disability of the principal' or 'shall become effective upon the disability of the principal,' or similar words showing that intent. A statutory form may be used. Source: SDCL 59-12-3; SDCL 59-12-4; SDCL 59-12-41
Health care directive	A competent adult may sign a living will declaration about withholding or withdrawing life-sustaining treatment; it must be signed by the declarant (or another at the declarant's direction) and either witnessed by two adults or notarized, and must state the person's wishes about artificial nutrition and hydration. The statute provides an optional sample form. A durable power of attorney for health care, naming an agent to make health care decisions while the person lacks capacity, must be signed by the principal (or another at the principal's direction in the principal's conscious presence) and witnessed by two other adults or a notary public. The living will signing statute was amended in 2023. Source: SDCL 34-12D-2; SDCL 34-12D-3; SDCL 59-7-2.1
Official power of attorney forms	South Dakota law lets a principal name an attorney-in-fact (agent) with authority to make health care decisions through a durable power of attorney for health care, including consenting to, rejecting or withdrawing consent for any care, service or procedure. It must be signed by the principal, and the signature must be witnessed by two other adults or by a notary public (SDCL 59-7-2.1). Source: SDCL 59-7-2.1

Living will / advance directive	A competent adult may sign a living will declaration governing the withholding or withdrawal of life-sustaining treatment. It must be signed by the declarant (or by another at the declarant's direction) and either witnessed by two adults or notarized by a notary public. The declaration must state the declarant's preferences about artificial nutrition and hydration. The statute provides an optional sample form. Source: SDCL 34-12D-2; SDCL 34-12D-3
Medical power of attorney	South Dakota uses a durable power of attorney for health care, naming an agent to make health care decisions while the principal lacks capacity. It must be signed by the principal (or by another at the principal's direction in the principal's conscious presence) and witnessed by two other adults or by a notary public. No single mandatory statutory form is required. Source: SDCL 59-7-2.1
Revocable living trust	South Dakota has not adopted the Uniform Trust Code; trusts are governed by its own statutes in SDCL Title 55. An express trust is created by words or acts of the trustor indicating with reasonable certainty an intention to create a trust and its subject, purpose and beneficiary, and any express trust concerning real property must also be evidenced in writing. A lawsuit contesting whether a revocable trust (or amendment) was validly created generally must be brought within one year after the settlor's death, or sooner after the trustee sends notice. Property transferred into the trust passes under its terms without probate; property left in the decedent's own name may still need probate or a small estate affidavit. Contest deadline: https://sdlegislature.gov/api/Statutes/55-4-57.html?all=true Source: SDCL 55-1-4; SDCL 55-4-57
Ways to avoid probate	Non-probate transfers available in South Dakota: (1) Transfer on death deed for real estate, recorded before death, with an affidavit of confirmation recorded after death (SDCL 29A-6-401 to 29A-6-435). (2) Joint accounts belong to the surviving party, and P.O.D. accounts pass to the P.O.D. payee (SDCL 29A-6-104). (3) Transfer-on-death registration of securities, a nontestamentary transfer (SDCL 29A-6-301 et seq., esp. 29A-6-309). (4) Transfer on death beneficiary on a vehicle or boat title with no open liens (SD Department of Revenue). (5) Small estate affidavit for personal property when the estate is $100,000 or less (SDCL 29A-3-1201). (6) Real property succession affidavit for South Dakota real estate worth $50,000 or less (SDCL 29A-3-1203). (7) Revocable living trust. TOD securities: https://sdlegislature.gov/api/Statutes/29A-6-309.html?all=true; TOD deed: https://sdlegislature.gov/api/Statutes/29A-6-408.html?all=true Source: SDCL 29A-6-104; 29A-6-309; 29A-6-408; 29A-3-1201; 29A-3-1203

Executor's duties	Main duties and deadlines for a South Dakota personal representative: qualify by filing an acceptance of office and any required bond; within 14 days after appointment, give information of the appointment to the heirs and devisees (and give the required written notice to the Department of Social Services); optionally publish a notice to creditors once a week for three successive weeks, requiring claims within four months after the first publication, and mail notice to known or reasonably ascertainable creditors; within six months after appointment or nine months after death, whichever is later, prepare an inventory of the decedent's property at date-of-death fair market value, with encumbrances; pay claims, expenses and taxes; distribute the estate; and close it, for example by filing a verified closing statement no earlier than four months after the original appointment. Information to heirs: https://sdlegislature.gov/api/Statutes/29A-3-705.html?all=true; creditors: https://sdlegislature.gov/api/Statutes/29A-3-801.html?all=true Source: SDCL 29A-3-601; 29A-3-705; 29A-3-706; 29A-3-801; 29A-3-1003
Letters testamentary	The circuit court issues letters to the personal representative after an application for informal probate and appointment or a petition in a formal proceeding. Priority goes to the person named in the will, then a surviving spouse who is a devisee, other devisees, the surviving spouse, other heirs, and (45 days after death) any other qualified person. Before receiving letters, the personal representative must file an acceptance of office and any required bond; bond is generally not required unless the court finds it is in the best interests of the estate. In a probated estate, South Dakota county treasurers accept a copy of the court papers appointing the personal representative to transfer vehicle titles. Source: SDCL 29A-3-203; 29A-3-601; 29A-3-603
Affidavit / determination of heirship	South Dakota has a statutory succession affidavit for real estate: sixty days after death, a person claiming to be a successor to the decedent's interest in South Dakota real property may file an affidavit describing the property and the decedent's interest, with a certified death certificate, with the register of deeds in each county where the property is located, if the decedent's interest in all South Dakota real property is worth no more than $50,000 and the other statutory conditions are met. For larger estates, heirs are determined in a formal testacy proceeding, which can result in an order that the decedent died intestate. Source: SDCL 29A-3-1203; SDCL 29A-3-401
Transferring a car after death	Vehicle titles are handled by the county treasurer for the SD Department of Revenue. If the title names a Transfer on Death beneficiary, the beneficiary applies for a new title with a copy of the death certificate. If there is no probate, an heir or devisee completes an Affidavit of Vehicle Ownership by Succession (Form 1013; used when the estate does not exceed $100,000) for each vehicle, surrenders the South Dakota title (or notes on the affidavit that it is unavailable), and the new owner applies for title; a successor is exempt from motor vehicle excise tax, but a purchaser pays it. If the estate is probated, the personal representative transfers the title, and the county treasurer requires the South Dakota title and a copy of the court papers appointing the representative, plus a title application and fee. Procedures manual: https://dor.sd.gov/media/3ejfnthn/2023-mv-procedures-manual.pdf Source: SD Department of Revenue, Motor Vehicle Procedures Manual (2023); Vehicle & Boat Beneficiaries

South Dakota Wills, Probate and Estate Law

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Wills

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Probate

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Power of attorney and health care directives

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Planning documents and avoiding probate

Executors and heirs

Official South Dakota forms

Probate court and deed recording by county

South Dakota estate law FAQ

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