Probate in South Dakota: What Your Family Goes Through Without a Will

South Dakota funnels most estates through probate court, with several ways to sidestep it. If no will is present at the time of death, this is called intestate succession. In South Dakota, an estate without a will goes through probate, unless any of the following apply.

Here's what usually doesn't need a probate judge's sign-off.

• Life insurance policies with a beneficiary.

• Retirement accounts with a beneficiary.

• Bank accounts with a payable-on-death designation

• Brokerage accounts with a transfer-on-death designation

• Property owned jointly with right of survivorship.

Without any of these conditions being present, an estate without a will does go through probate in South Dakota. If the total gross value of probate assets is $50,000 or less (personal property only), you can use a small estate affidavit instead of full probate. South Dakota also offers a separate affidavit for real property valued at $50,000 or less — available 60 days after death, though it excludes agricultural land, so a formal proceeding is still needed for larger or agricultural real estate.

Succession Laws Without a Will in South Dakota

Before the lines of succession make sense, it helps to know how South Dakota classifies property. South Dakota is a common law property state, not a community property state, meaning is determined by whose name is on the title, deed, or account. South Dakota follows the Uniform Probate Code and is well known for being a tax-friendly state.

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If none of the exceptions above apply, the estate will go through probate and be distributed as follows.

• If your children are all shared with your spouse, and your spouse has no other children, your spouse inherits everything.

• If you have children from outside the marriage, your spouse inherits the first $100,000 of your estate, plus 1/2 of the balance. Your children inherit the rest.

• If you are married with no descendants, your spouse inherits everything.

• If you have children but no spouse, your children inherit everything, divided equally.

• If you have no spouse and no children, your parents inherit everything.

South Dakota Probate Process

South Dakota offers both informal probate, handled administratively by the court registrar for uncontested estates, and formal probate when a judge needs to get involved. There is no state estate or inheritance tax imposed by South Dakota.

Avoiding Probate in South Dakota

Here are the standard tools for keeping an estate out of probate court.

• To have full control over your estate as the trustee, place all of your assets in a revocable living trust. You name a successor trustee and they manage asset distribution after you die according to your wishes.  

• To transfer ownership of financial and retirement accounts, choose a payable-on-death (POD) designation or a transfer-on-death (TOD) designation to determine a new owner for those accounts.

• Establish joint ownership with right of survivorship to ensure an automatic transfer to a new owner.  

Need to know more about trusts in South Dakota? Check out what you’ll need to make your own living trust.