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The Duty of a Personal Representative to Recover Assets Missing From a South Dakota Estate

On Behalf of | Oct 12, 2023 | Will Contests & Estate Litigation

When a South Dakota resident prepares a will or estate plan, that person must name a personal representative (sometimes called an executor) who will administer the estate once the testator passes away. If someone dies intestate (without a will), the court will appoint a personal representative whose duties are to:

  • Manage, protect, and preserve the estate
  • Calculate the value of the estate’s assets
  • Create a detailed inventory of all assets, their value, and any debt/taxes owed on them
  • File the inventory with the court and make a copy available to any interested party who requests one
  • Pay all debts/taxes owed by the estate
  • Collect any money owed to the estate.
  • Distribute the assets of the estate according to the instructions in the will or South Dakota law

The official appointment of the representative usually does not take place immediately after the testator’s death. Because relatives are bereaved and often busy with funeral arrangements/family gatherings, some weeks might pass before the process of probating and administering the will begins.

During this time, friends or family members who have access to the deceased’s property might believe they’re entitled to take assets they feel they should inherit. This is most likely to happen when there is disagreement among the beneficiaries regarding the proper distribution of the estate. Assets commonly taken in this manner include:

  • Cars
  • Jewelry
  • Tools
  • Furniture
  • Art
  • Clothing
  • Firearms
  • Credit/debit cards
  • Money from the deceased’s bank accounts or other financial assets

The Personal Representative’s Responsibility

If you’re the personal representative of an estate that has been pilfered before it’s properly probated, you have the responsibility of reclaiming the estate’s stolen assets. You have the right to file a lawsuit forcing any person or entity (a trust, corporation, or financial institution) suspected of unlawfully possessing estate property to:

  • Testify before the court as to the whereabouts of any missing items
  • Return the property or pay its value to the estate, along with any income received as a result of taking unlawful possession of the property
  • Pay court costs

Any legal fees you incur in the process of reclaiming estate property should be paid by the estate, not by you personally, so you shouldn’t hesitate to consult a wills and estates attorney to help you properly discharge your duties. Failure to do so could subject you to legal action, including a petition by heirs and beneficiaries to remove you as personal representative of the estate.

Guidelines for Reclaiming Stolen or Missing Assets

If you have any suspicion that assets from the estate are missing, there are three steps you should take.

  • Contact a lawyer immediately. Most wills and estates firms will offer you a free initial consultation to evaluate your case. The faster you move, the more likely you are to recover the missing goods. The statute of limitations (deadline) for probate matters is generally three years, but it can vary widely, depending on a number of circumstances. Your lawyer can start the legal process of reclaiming missing assets and make sure you meet all deadlines and follow procedural rules.
  • Authorize your attorney to investigate. A legal investigation and forensic accounting procedures are the best tools to help you locate and reclaim items stolen from the estate.
  • Don’t be patient. If you’ve requested documentation of the whereabouts of missing assets from a suspected heir/beneficiary and received no response, inform your attorney sooner rather than later. Time is generally of the essence when it comes to finding lost estate assets.

Are You the Personal Representative of a South Dakota Estate From Which Assets Have Been Removed?

You have a responsibility to adhere to the letter of the law and act in the best interests of the estate. Failure to do so could subject you to legal action and/or a petition for removal by the deceased’s heirs/beneficiaries. An experienced wills and estates attorney can help you discharge your duties and keep you on the right track. Your attorney fees should be paid by the estate, so you have much to gain and nothing to lose by contacting us online or calling us at 605-644-5003 to schedule a free consultation. We serve clients throughout South Dakota and northwest Iowa, and you pay no attorney fees until we win your case.