Legal professionals agree it’s a good idea to create a will stating what you want done with your assets after your death. Nonetheless, almost 60% of South Dakotans die intestate (without a will). When that happens, the state’s laws of intestate succession determine what happens to their money, property, vehicles, jewelry, clothing, pets, and other possessions.
When there is a will, it often names a personal representative (sometimes called an executor) of the estate. The representative submits the will for probate and distributes the deceased person’s assets according to the will. If there is no will, the probate court appoints a personal representative who must distribute the property as South Dakota law directs. The representative has a duty to the estate and the heirs of the deceased, as well as to the court, to represent the estate properly and legally.
How Assets Are Distributed According to South Dakota Law
Assets a person owns solely in their name pass according to South Dakota intestate succession laws, as they would have passed according to the will’s instructions had they made one. Certain assets, however, are not controlled by these laws. The following assets go to named beneficiaries or living co-owners, regardless of whether the deceased person had a will:
- Property owned with someone else
- Funds in a retirement account
- Life insurance benefits
- Property transferred to a living trust
- Payable-on-death bank accounts or transfer-on-death securities
Duties of the Estate’s Personal Representative
The estate’s representative must follow a strict protocol in administering the assets of the deceased:
- Notify heirs, beneficiaries, and creditors of the death
- Take inventory of all assets and have non-monetary assets appraised
- Collect income or debts due to the estate
- Pay outstanding debts and taxes
- Liquidate assets to pay bills, if needed
- Divide the remaining assets among heirs and beneficiaries according to South Dakota’s intestate succession laws
South Dakota’s Intestate Succession Laws
When a person dies intestate, what happens to their property essentially depends on their family relationships at the time of their death:
- If they leave behind biological or legally adopted children, but no spouse, the children inherit everything. Stepchildren or foster children who aren’t legally adopted take nothing.
- If they are survived by a spouse but no descendants, their spouse inherits everything.
- If they leave behind a spouse and children, grandchildren, or great-grandchildren descended from them and their spouse, their spouse inherits everything. (Any child born to a legally married woman is considered her husband’s child, as well.)
- A child born out of wedlock may inherit under any of the following three conditions:
- The parents married after the child was born.
- Paternity is legally proven before or after the father’s death.
- Paternity is acknowledged in writing by the father.
- Any biological child who is legally adopted by someone else inherits nothing unless adopted by a grandparent or other blood relative.
- A child of the deceased born 10 months or less after their death may inherit as long as they live for at least 120 hours.
- If the deceased is survived by a spouse and one or more descendants that they share with someone other than their spouse, the spouse inherits the first $100,000 worth of the assets plus half the balance of the estate. The remaining half of the balance goes to the descendant(s).
- If the deceased leaves behind parents but no spouse or descendants, the parents inherit everything.
- If they are survived by siblings but no spouse, parents, or descendants, the siblings inherit everything. If the siblings are deceased, their descendants divide everything equally.
- If the deceased leaves behind no spouse and no relatives descended from their grandparents, the state of South Dakota takes everything.
- The heirs need not be U.S. citizens to inherit from the deceased.
The complexity of these laws makes the job of the estate’s representative a difficult one. The help of an experienced lawyer is highly recommended, especially if:
- The estate has significant debt or tax liability.
- The ownership of assets is disputed.
- Beneficiaries are difficult to locate.
- The representative makes any mistakes causing damage to the estate.
- Disgruntled heirs of the deceased petition the probate court to remove the representative.
Are You the Personal Representative or Heir of Someone Who’s Died Intestate?