Probate is the legal process of settling a deceased’s affairs in an organized fashion. Although the probate process has a bad reputation, it is the reality for a significant number of families, and it’s a process that can function well for some small estates.
Here’s what heirs should know about probate after the loss of a loved one, as well as what people who are making their own estate plans ought to know about avoiding probate.
What Does Probate Involve?
When someone dies, survivors must do certain things such as arranging a funeral or obtaining a death certificate, and figuring out what to do with all the loved one’s belongings, both tangible and intangible, such as bank accounts, mortgages, and more. This is where probate comes in.
Family members and loved ones can’t usually just descend upon the estate to take what the deceased left behind (even if the will states they are entitled to certain assets) or ignore all the matters an individual left unresolved.
Probate is the legal process of settling a deceased’s affairs in an organized fashion.
Executors usually oversee probate through the probate court, which may also be called the superior court or surrogate’s court, depending on your state. Courts are usually organized by county.
While it’s possible to handle some filings and matters entirely electronically, the court may require representatives and beneficiaries to physically appear in court at a courthouse if there’s a dispute or legal challenge or clarification is necessary.
In the event that a person dies without a will, the surviving spouse or adult child usually has priority to open a probate case as the administrator. Executors and administrators of an estate can consult a probate attorney if they need legal advice or assistance.
How Do Probate Laws Work in South Dakota?
Probate is the process by which assets of an individual, known as the decedent, who recently passed away, transfer to the individual’s heirs. As part of this legal process, the probate court will validate the decedent’s last will and testament, distribute assets to the heirs, and settle all debts.
Most people write a last will and testament to state their wishes and instructions regarding their estate. The probate process involves proving the will is legitimate (verifying that it is a legal document). There may still be probate in the absence of a will because the court must establish how to distribute the assets of the deceased’s estate to their loved ones.
- Probate laws vary from state to state, and most states allow you to avoid it under certain conditions.
- If you become the personal representative of an estate, you can initiate probate by filing a petition with the court.
- You can’t avoid probate by making a will, but the terms can guide the process, and not all wills need to be probated at all.
Examples of Probate
Property subject to probate is untitled property, does not have a beneficiary designation, or the deceased solely owns, or jointly owns it with another individual as tenants in common. This is joint tenancy. Usually, the executor must file probate on these high-value assets that meet these qualifications, as well as any assets that a will instructs to pass into a trust upon an individual’s death since the trust doesn’t yet own the assets.
The following are examples of assets typically subject to probate:
- Real property the decedent owns alone;
- Ownership of the decedent’s portion of assets as tenants in common;
- Personal property with high value, including jewelry, artwork, and vehicles;
- Upon the death of a decedent, assets must transfer into a trust (like a testamentary trust);
- Accounts that have not been made transferable or payable on death.
When Is Probate Required in South Dakota?
Probate is not always necessary, and this is true whether the decedent died testate or intestate (died with or without a valid will).
All wills do not need to be probated. A decedent’s estate’s need for probate depends mostly on the assets they leave behind and their total value. Some assets do not require probate. The deceased’s property that has a beneficiary designation, whether it’s a bank account, retirement plan, or life insurance policy, can transfer directly to the beneficiary. This also applies to assets held in trust and properties owned through a transfer-on-death deed. It is a good idea not to leave any or all of these assets in your will.)
Probate may also be necessary for the following circumstances:
- A handwritten will or unclear terms;
- Beneficiaries or heirs are minors without a guardian or conservator;
- Supervision of the entire process is necessary via court proceedings;
- There must be an heirship hearing;
- Probate assets include real estate and land (real property);
- The decedent’s estate is very large.
How to Start the Probate Process in South Dakota?
To begin the probate process, the executor must contact the local court office and file papers, or petitions, and the process may take a matter of weeks or even years, depending on the estate’s magnitude. A majority of states offer a variety of probate procedures, and they usually offer at least one option to avoid probate completely, which can be beneficial to loved ones and family since they can receive inheritances sooner.
How Long Does Probate Take?
Depending on the complexity of the case, the probate timeline may take anywhere from a few months to a year and longer. In general, smaller estates take less time to settle than larger ones with more moving parts (probate assets, beneficiaries, other complications, such as debts and taxes), but it depends on how quickly the estate representative can move through the process. Legal challenges can prolong this process, so make sure you don’t write an invalid will.
How Much Does Probate in South Dakota Cost?
Depending on the value of the estate assets, probate can cost anywhere from 3 percent to 8 percent. Probate costs differ by state, and can include:
- Fees for court filings;
- Creditor notice fees;
- Executor fees;
- Probate bond;
- Attorney expenses.
Generally, the estate’s assets pay the probate costs. If you make a will, you can open a living trust to defray some of these costs.
How to Avoid Probate in South Dakota?
Most people want to avoid probate so their beneficiaries can receive their inheritances more quickly without getting caught up in the tedious probate process, which can take a long time.
It is legal to settle estates without formal probate in almost all states. Many states have informal probate procedures, and some have three or four ways to settle an estate. For small estates, an affidavit is the most common probate alternative, which allows executors to avoid court interactions.
You can prevent probate by keeping your estate mostly non-probate at the time of death. Examples of this would be jointly owned accounts and payable-on-death accounts.
If you plan ahead, you can avoid probate by setting up an inter vivos trust (a trust created during your lifetime) and transferring assets into it for your heirs during your lifetime. Trusts are an estate planning tool that manages and distributes assets separately from probate, according to the trust’s terms.