If a person creates a will before passing away in South Dakota, the will must go through the legal probate process after that person’s death. This allows the deceased person’s assets to be distributed as instructed in the will, but complications can occur that require an attorney's assistance.
In some cases, one or more heirs or beneficiaries of the deceased might believe that the will is not being administered properly and decide to challenge or contest it in probate court. Common reasons for contesting a will are:
- Disputes over the will’s validity
- Suspected breach of duty on the part of the personal representative
- Paternity disputes
- Multiple spouses
- Procedural errors
- Undue influence on the deceased by a third party
- Lack of testamentary capacity on the part of the deceased
- Creditor disputes
- Suspected fraud or forgery
- Multiple wills
- Conflicting probate laws (if the deceased owned property in different states)
The Steps of the Probate Process
Understanding the probate process will help you better anticipate potential problems that may require an attorney's assistance.
Step 1: Filing
The personal representative of the deceased’s estate (who might be named in the will or appointed by the court) files a petition requesting that the will be probated. All heirs and other beneficiaries are notified so that they may object to the petition or contest the will if they have reason to do so.
Step 2: Identifying Assets and Debts
The personal representative identifies and discloses to the court all the estate’s assets:
- Real estate
- Other personal or intellectual property
Step 3: Payment of Debts
The personal representative uses the estate’s assets to pay any outstanding:
- Bills, loans, or mortgages
- Credit card debt
- Funeral expenses
If the estate does not have enough money to pay creditors, the personal representative may sell the estate’s assets in order to pay debts.
Step 4: Distribution of Assets
After all debts are paid, the personal representative distributes the remaining assets to heirs and beneficiaries as instructed in the will.
Are You a Beneficiary or Personal Representative Facing Probate Litigation in South Dakota?
Protect your interests and the last wishes of your deceased loved one by consulting an experienced wills and estates attorney. Contact us online, start a chat, or call us at 605-306-4100 to schedule a free consultation.