After a death in South Dakota

Small estates

Collection of personal property by affidavit (SDCL 29A-3-1201). Can be used when the whole estate, less liens and encumbrances, is worth $100,000 or less and 30 days have passed since death. A successor signs an affidavit stating that no personal representative has been appointed or requested, that the person owed no medical assistance debt to the Department of Social Services, and that the successor is entitled to the property. The affidavit is presented to the bank or other holder of the property.

• Limit: $100,000 (entire estate, less liens and encumbrances)
• Waiting time after the death: 30 days
• Source: the official source

Probate court

In South Dakota, estates are handled by the Circuit Court in the county where the person lived. South Dakota has no separate probate court., usually in the county where the person lived.

Creditor claims: 4 months after the first publication of the notice to creditors. Known creditors who are mailed notice have until the later of 4 months after the personal representative is appointed or 60 days after the notice is mailed (SDCL 29A-3-801).

Official court forms

The South Dakota court site has no probate or small estate forms. Call the clerk of courts in the county where the person lived.

Ask the clerk of the probate court in the county where the person lived for the forms they use. Many courts post them on the county website.

Estate and inheritance tax

• State estate tax: No. South Dakota has no state estate tax.
• Inheritance tax: No. South Dakota has no inheritance tax.

The federal estate tax applies only to very large estates. Most families do not owe it.

Property that passes outside probate

• Transfer on death deed for a home: Yes. Transfer on death deed under the South Dakota Real Property Transfer on Death Act (SDCL 29A-6-401 and following). The deed must be recorded before the owner dies. Optional forms are in the statute.
• Community property state: No.

Accounts with a named beneficiary, jointly owned property and property in a living trust usually pass directly, without probate, in every state.

Wills

Signing a will: In writing, signed by the will maker (or by another in their conscious presence and at their direction), and signed by two or more witnesses who, in the will maker’s conscious presence, saw the signing or the will maker’s acknowledgment (SDCL 29A-2-502).

Handwritten wills: Valid if the signature and the material parts are in the will maker’s handwriting. No witnesses needed (SDCL 29A-2-502).

Power of attorney and health care directive

Financial power of attorney: South Dakota adopted the Uniform Power of Attorney Act in 2020 (SDCL chapter 59-12). The principal must sign, and the signature must be acknowledged before a notary (SDCL 59-12-4). No witnesses are required. There is a statutory form (SDCL 59-12-41).

Health care directive: Durable power of attorney for health care (SDCL 59-7-2.1): signed by the person, with the signature witnessed by two other adults or by a notary. Living will declaration (SDCL chapter 34-12D): the optional state form (SDCL 34-12D-3) has lines for the person, two witnesses and a notary.

Death certificates

Certified copies come from the South Dakota Department of Health, Vital Records. The funeral home can usually order them for you.

Most families need 6 to 12 certified copies. Banks, insurers and brokerages usually want a certified copy.

Also good to know

South Dakota’s small estate affidavit covers estates up to $100,000. Married couples can opt into community property style treatment through a special spousal trust (SDCL chapter 55-17), but South Dakota is not a community property state.