South Dakota Wills Laws

Everyone should have a will. Generally, a will allows for a smoother transfer of your property after death. A will is basically a written document that states what you want to have happen to your property when you pass away. In other words, it directs where your assets go after you die. If you do not have a will at the time of your death, your property will be distributed as outlined by the law of the state where you live.

Creating a Will in South Dakota

There are certain requirements which must be met for a will made in South Dakota to be considered legal. The law requires that:

  • The maker of the will (called the testator) be at least eighteen (18) years old and of sound mind.
  • The will must be written. (An oral will may be considered legal only in certain unusual circumstances.)
  • The will must be witnessed strictly in accordance with the law. (No witnesses are necessary if the will is dated and if the signature and instructions are in the handwriting of the testator. This is called a holographic will.)

However, later proof of any fraud, duress, or undue influence on the testator may cause the will to be invalid.

How Many Witnesses Do I Need To Make My Will?

You will need two (2) witnesses to your will.

Does My Will Need To Be In Writing?

Your valid will must be in writing and signed at the end by the testator (you) and by the two witnesses. If the testator cannot physically sign his or her name, he may direct another party to do so. This party may not be one of the witnesses. Each witness must sign the will in the testator’s presence.

Dying Without a Will

If a person dies without a will, the court gets to decide, based on state law, how to divide up the deceased's property. Even if the deceased expressed different wishes verbally during their lifetime, the statutes control the distribution. With a valid will, a person can legally determine how their property will be distributed and to whom.

The basics of South Dakota's will laws are summarized below. See FindLaw's Wills section for more articles and resources.

Code Section 29A-2-501, et seq.
Age of Testator 18 years or older and of sound mind
Number of Witness Signed in conscious presence of testator by two or more individuals who, in the conscious presence of testator, witnessed either the signing of the will or the testator's acknowledgment of that signature.
Oral Wills Not generally recognized
Holographic Wills Valid if signature and material portions are in testator's handwriting; need not be witnessed.

Although it is possible to write a will on your own, only an attorney will be able to tell you if a will is the best option for your estate plan. As well, if you choose to make a will, an attorney will help you set up the will in order to avoid as much hassle and cost for your heirs.

If you would like to know more about the requirements and process for making a will in South Dakota, there are many estate planning attorneys throughout the state, and in your local area, who may be able to help.

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