How Probate Works in South Dakota

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.

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.

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.

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.

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.

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.