South Dakota Probate and Estate Tax Laws

Regardless of whether a person dies with a valid will (testate) or without a valid will (intestate), their estate will pass through probate. Probate is the administrative process by which the deceased's property (both personal and land) are collected and distributed to the deceased's heirs and devisees.

Many states, including South Dakota, have adopted the Uniform Probate Code (UPC) in order to promote simplification, clarification, and efficiency in administering the estates of deceased parties. Under the UPC, any part of the deceased's estate that isn't effectively disposed of by will (or that passes outside of probate) is distributed according to the laws of intestate succession. The intestate succession laws that are applicable in South Dakota are outlined below.

Code Section

South Dakota Code chapter 2: Intestate Succession

Share of the Surviving Spouse

 

The deceased's surviving spouse receives the entire intestate estate if:

  • No descendant of the deceased survives the deceased, or
  • All of the deceased's surviving descendants are also descendants of the deceased's surviving spouse

The deceased's surviving spouse receives the first $100,000, plus one-half of the remaining intestate estate if:

  • One or more of the deceased's surviving descendants are not also descendants of the deceased's surviving spouse

Share of Heirs Other than Surviving Spouse

Any part of the intestate estate that doesn't pass to the deceased's surviving spouse (or the entire estate if there isn't a surviving spouse) passes in the following order to the individuals below who survive the deceased:
  • To the deceased's descendants (by representation)
  • If there is no surviving descendant, to the deceased's parents
  • If there is no surviving descendant or parent, to the deceased's aunts and uncles (by representation), and
  • If there is no surviving descendant, parent, aunt, or uncle, then to the deceased's grandparents and then to the to deceased's great-aunts and great-uncles (by representation)

Property that Passes Outside of Probate

Not all property is subject to probate in South Dakota. Transferring property outside of the probate process can save time, money, and potentially years of legal hassle. There are several ways to pass property outside of probate including:

  • Joint Property Ownership
  • Death Beneficiaries
  • Revocable Living Trusts
  • Gifts

For more information about the types of property that pass outside of probate see FindLaw's section on Avoiding Probate.

The Estate Tax

As of January 1st, 2015, a handful of states still collect an estate tax, but South Dakota is not among them. However, the federal government does impose an estate tax on high value estates. In 2015, this tax is applicable to estates that are valued at $5,430,000 or more.

Additional Resources

State laws change frequently. For case specific information regarding South Dakota's probate and estate tax laws contact a local estate planning lawyer or tax attorney.

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