How to create a Basic Will in South Dakota
Creating a will in South Dakota involves several steps. Here is an overview of the general process to create a Will in South Dakota:
- Eligibility: To create a will in South Dakota, you must be at least 18 years old and of sound mind, meaning you understand the nature and consequences of creating a will.
- Gather information: Before meeting with an attorney or starting the process on your own, gather information about your assets, debts, and beneficiaries. Make a list of your properties, bank accounts, investments, personal belongings, and other assets you want to include in the will.
- Choose an executor: Select someone you trust to be the executor of your will. The executor will be responsible for ensuring that your wishes are carried out and handling the legal aspects of distributing your estate.
- Draft the will: With the help of an attorney or using an online template, draft your will. The will should include your name, address, and a statement that it is your last will and testament. It should also appoint the executor and outline how you want your assets distributed to beneficiaries.
- Witnesses and signatures:To be recognized as valid in South Dakota, your will must be signed by you (the testator). Additionally, the will should be attested and signed in your presence by at least two credible witnesses. Both witnesses must be present simultaneously when you sign the will.
- Safekeeping: Store your will in a safe and accessible place. Inform your executor about the location of the will or keep it with your attorney or in a safe deposit box.
- Keep the will updated: Review and update your will periodically, especially after significant life events like marriage, divorce, birth of children, or acquiring new assets.
How to create a Will online for free
Following the steps outlined above, you can create your own Last Will and Testament online for free. Our template below is suitable for most family situations. Though it’s always recommended to have an attorney review your Will when possible.
South Dakota Last Will & Testament Example Form - Download (PDF)
Download and print the example form below.
Download South Dakota WillWhat are the different types of Wills you can create in South Dakota?
This is the most basic and common type of will. It outlines how your assets will be distributed among your beneficiaries, and it may include provisions for guardianship of minor children. Simple wills are suitable for individuals with straightforward estate plans.
A holographic will is handwritten and signed by the testator (the person making the will) but may not have been witnessed. Some jurisdictions recognize holographic wills, but they can be subject to stricter requirements and may not be accepted in all situations.
A conditional will includes specific conditions that must be met for the will’s instructions to take effect. For example, the will might state that a certain beneficiary will inherit only if they reach a certain age or fulfill certain obligations.
In some jurisdictions, an unsolemn will is a will that has not been formally witnessed, but it may still be considered valid under certain circumstances, such as if the testator was in danger of death.
What are the benefits of creating a simple Will in South Dakota?
- Control and autonomy: Creating a will lets you decide who will inherit your assets, including money, property, and personal belongings. You have the power to ensure your things go to the people or causes you care about the most.
- Guardianship of minors: If you have young children, a will allows you to appoint a guardian to care for them if both parents pass away. It gives you peace of mind knowing your kids will be taken care of by someone you trust.
- Avoiding family conflicts: By laying out your wishes clearly in a will, you can help minimize potential disagreements among your family members regarding the division of your assets.
- Efficient probate process: With a will in place, the legal process of distributing your estate, known as probate, can be more streamlined and faster, reducing stress for your loved ones during a difficult time.
- Executor appointment: You can nominate an executor in your will, someone responsible for making sure your wishes are carried out and your estate is distributed properly.
- Philanthropic opportunities: Through a will, you have the chance to leave part of your estate to charitable organizations or causes you support, leaving a positive impact on society.
- Peace of mind: By creating a will, you gain the satisfaction of knowing you’ve taken steps to plan for the future and safeguard your loved ones’ interests.
How much does it cost to create a Last Will & Testament in South Dakota?
| Attorneys & Lawyers | Online Software | DIY Forms |
|---|---|---|
$150 - $450 per hour + | 100 - 300 + | free - 100 + |
Other considerations:
Legal Clinics or Workshops: Some non-profit organizations or legal aid societies offer free or low-cost will drafting services to eligible individuals, especially seniors or those with low income.
Paralegal Services: Some paralegals offer document preparation services. While they are generally cheaper than attorneys, paralegals cannot give legal advice. Their services can range from $100 to $500 for a basic will.
Additional Costs: There may be additional costs for notarization, witnesses, and any other requirements for making the will valid in South Dakota.
Updating or Changing a Will: If you need to update or change your will in the future, you might incur additional costs, depending on the method you choose and the extent of the changes.
Legal requirements for a basic Will in South Dakota
Creating a valid will in South Dakota requires adherence to certain legal requirements.
- Age Requirement: The person creating the will, known as the testator, must be at least 18 years old.
- Mental Capacity: The testator must be of sound mind, which means they understand the nature of the will, know the nature and extent of their property, and recognize their relation to living descendants, spouse, and others whose interests are affected by the will.
- Written Document: In South Dakota, the prevalent form of wills are those that are written, which can be either typewritten (commonly called formal wills) or holographic (completely handwritten).
- Typewritten Will: This should ideally be prepared with legal oversight or through a reliable template to ensure it covers all necessary aspects.
- Holographic Will: In South Dakota, holographic wills are valid if they are entirely written, dated, and signed by the testator’s hand. A holographic will in South Dakota does not have to be witnessed in order to be valid.
- Witnesses: A typewritten will must be signed by the testator and witnessed by at least two individuals who both:
- Were present at the same time when the testator signed or acknowledged the will.
- Understand that the document is the testator’s will.
These witnesses should not be beneficiaries in the will, as this can create potential conflicts or disputes.
- Signature: The will must be signed by the testator.
- Self-Proving Affidavit: While not a requirement, including a self-proving affidavit can expedite the probate process. This affidavit is a notarized document signed by the testator and witnesses, affirming the authenticity of the will.
- No Requirement for Notarization: South Dakota does not require wills to be notarized to be considered valid. However, if the will contains a self-proving affidavit, notarization is necessary for that part.
- Revocation or Alteration: A will can be revoked or changed by the testator during their lifetime through various methods, such as creating a subsequent will or codicil or intentionally burning, tearing, canceling, obliterating, or destroying it.
- Oral Wills: South Dakota does not recognize oral wills.
It’s essential to keep in mind that while understanding these requirements provides a foundation, drafting a will is a critical legal task. Errors can have significant implications for asset distribution and loved ones. Therefore, it’s advisable to consult with a South Dakota-based estate planning attorney when creating or updating a will.
Notarizing a Will in South Dakota
In South Dakota, there is no legal requirement to notarize a will for it to be considered valid. However, the decision to notarize a will can have implications based on the presence of a “self-proving affidavit.”
Self-Proving Affidavit and Notarization: While the will itself doesn’t need to be notarized, a self-proving affidavit attached to the will should be. A self-proving affidavit is a notarized document signed by the testator and the witnesses that verifies they all properly executed the will. This affidavit can expedite the probate process because, with it, the court can accept the will without having to contact the signing witnesses to confirm the will’s authenticity.
If I move to another state, is my South Dakota Will still valid?
If you move to another state, your South Dakota will generally remains valid, especially if it was validly executed according to South Dakota’s laws. However, there are some important considerations to bear in mind:
Different State Laws: While many states have similar basic requirements for will validity, such as the testator’s age and mental capacity and the need for witnesses, the specific details can vary. Some states may have nuances in their requirements, such as the number of witnesses needed, that could potentially impact the validity or interpretation of certain provisions in your will.
Property and Specific References: If you acquired property in your new state or have specific references in your will that are tied to South Dakota, these might need reconsideration and revision to suit your new state’s laws or context.
Executor/Appointee Regulations: Some states have regulations concerning out-of-state executors or other appointees. If your will names a South Dakota resident as your executor, the new state might impose additional requirements or restrictions on them.
Marital Property: If you move from a common law property state like South Dakota to a community property state (or vice versa), it could affect how marital property is viewed and divided. This change could have implications for how assets are distributed in your will.
Updates and Life Changes: Moving to a new state is a significant life event, and it’s a good time to review your will. Other changes might have occurred in your life, such as births, deaths, marriages, or divorces, which might also warrant updates to your estate plans.
New State’s Provisions for Out-of-State Wills: Some states have provisions that specifically address the validity of wills executed in other states. These provisions might explicitly validate out-of-state wills if they were validly executed under the laws of the originating state.
Recommendation: While your South Dakota will might remain valid after moving, it’s wise to consult with an estate planning attorney in your new state. They can review your will to ensure it complies with the new state’s laws, and they can advise on any updates or revisions that might be beneficial or necessary. This proactive approach can save potential complications and disputes down the road.
What are the executor requirements for a Will in South Dakota?
In South Dakota, the law sets forth certain requirements and considerations for individuals to serve as executors of a will. Here are the primary requirements and considerations for an executor in South Dakota:
Age: The executor must be at least 18 years old.
Mental Competency: The individual must be of sound mind, which means they need to understand the duties and responsibilities they’re undertaking as an executor.
No Felony Convictions: South Dakota law has certain considerations about selecting individuals with felony convictions to act as executors. Depending on the specifics of the felony, a court might deem a person unfit to serve as an executor due to concerns about their trustworthiness or potential conflicts of interest.
Non-Residents: Although being a South Dakota resident isn’t a strict prerequisite for a personal representative, those from out-of-state might encounter added requirements. They may need to appoint an in-state agent for service of process and, in some cases, might be required to post a bond even if the will exempts this stipulation.
Bonding: It’s common in South Dakota for a personal representative to be asked to post a bond. This bond acts as a protective measure for the estate’s beneficiaries, guarding against potential misconduct by the personal representative. However, the will’s creator (the testator) can delineate in their will that this bond requirement be waived.
No Conflicts of Interest: The court may evaluate potential conflicts of interest. For instance, if someone stands to benefit inappropriately from their position as executor, the court might choose not to appoint them.
Court Discretion: Ultimately, even if someone meets all the legal requirements, the court can use its discretion to determine if an individual is suitable to serve as an executor. The court’s primary concern is the faithful and efficient administration of the estate.
Willingness to Serve: It’s also essential to remember that being named as an executor in a will doesn’t obligate the individual to serve. If they’re unwilling or unable to undertake the responsibilities, they can decline.
If you’re considering naming an executor in your will or have been named as one, it’s a good idea to consult with an estate planning attorney in South Dakota to fully understand the responsibilities and legal implications.
Living Trust Vs Will: Which one is better?
To put it simply, Living Trusts are significantly better than Wills in many aspects but the most important reason is that a Trust allows you to bypass the probate process, which is the expensive, lengthy, and stressful 6-12 month process where courts validate Wills and distribute assets to beneficiaries. This process can be extremely stressful for your family. Both tools can be used simultaneously in estate planning, with a Will often serving as a “backup” to capture any assets unintentionally left out of a trust. Deciding between a Will, a Trust, or using both depends on individual circumstances and objectives. Read more about The Benefits of a Living Trust
Here is a breakdown of the differences:
- Will: A legal document that specifies how an individual’s assets will be distributed upon their death.
- Trust: A legal entity where one party, the trustor, grants another party, the trustee, the right to hold and manage assets for the benefit of third parties, the beneficiaries.
- Will: Assets specified in a Will go through the probate process, where a court ensures the deceased person’s wishes (as specified in the will) are followed. This can take 6-12 months and be very expensive.
- Trust: Assets held in a trust typically bypass the probate process. This can result in a significantly faster, less costly asset distribution. Saving your family from expensive legal fees.
- Will: Because it goes through probate, a will becomes a public record, which means anyone can access its contents.
- Trust: Remains private, and its details aren’t usually accessible to the public. You can also create a Trust using an anonymous name to increase privacy further.
Control:
- Will: Provides instructions for asset distribution upon death.
- Trust: With a living trust, you can set specific conditions on how your assets are managed and distributed. For example, you can stagger distributions to beneficiaries or set up provisions to protect assets for minor children or beneficiaries with special needs. This level of flexibility is often more challenging to achieve with a will.
- Will: Does not provide any particular protection against creditors or lawsuits.
- Trust: Certain types, like irrevocable trusts, can offer protection against creditors or legal claims. As well as protection from family disputes.
- Will: No tax benefits.
- Trust: Certain trusts can provide tax advantages or help in estate tax planning.
