A person who creates a will in South Dakota is called a testator. The testator generally names a personal representative (sometimes called an executor) to administer the will after the testator passes away. If a personal representative is not named in the will, the probate court can appoint one. The representative must be over 18 years of age and of sound mind.
The personal representative has very serious legal duties and obligations to the estate of the testator:
- Locating and protecting the testator’s assets
- Paying any outstanding debts/taxes owed by the estate
- Collecting any money owed to the estate
- Listing the assets of the estate and their respective values
- Dispersing the assets of the estate to beneficiaries as directed by the will
Common Reasons for Estate Litigation
In some cases, creditors, beneficiaries, or other interested parties might initiate litigation (file a lawsuit) against the estate or the personal representative for mishandling the estate in one or more of the following ways:
- Neglecting/wasting estate assets
- Being non-transparent
- Keeping poor records
- Not communicating with beneficiaries
- Failing to pay taxes/debts
- Mixing estate and personal assets
- Embezzling estate funds
- Not distributing assets according to instructions in the will
If a creditor files a suit against the estate or a beneficiary petitions to have the representative removed, the representative can hire an attorney (at the estate’s expense) to answer the complaint. If you’re a beneficiary in such a case, you should have your own attorney to protect your interests, rather than relying solely on the attorney hired by the representative. The same is true if:
- There are other beneficiaries contesting the will.
- There are claims of undue influence over the testator when the will was written.
- The testator was not of sound mind.
- There is evidence of fraud or forgery in connection with the will.
Your lawyer can help you to meet all procedural requirements and court deadlines and obtain what is rightfully yours according to the instructions in the will.
Are You the Beneficiary of a South Dakota Will That Is Being Improperly Administered by a Personal Representative?
Estate litigation is a very complex area of the law and one in which a number of parties often end up fighting in court to protect their interests. Consulting an experienced wills and estates attorney is the first step toward receiving the assets your deceased love one wanted you to inherit. Contact us online or call us at 605-306-4100 to schedule a free consultation. We serve clients throughout South Dakota and northwest Iowa.