Heir Rights (SD)
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As an heir, you likely have questions about the inheritance process in SD, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under SD Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, SD estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- SD Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see SD Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
Additional considerations:
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See SD Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
SD Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In South Dakota, small estates can avoid full probate via small estate affidavit or informal probate. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Estate Affidavit
If a South Dakota estate has a gross value <$100,000, you can use the small estate process to settle the estate with no court involvement.
Requirements
To use the small estate process, the following conditions must be true:
- The entire probate estate has a gross value <$100K
- The Department of Social Services is not owed for medical assistance for nursing home or other medical institutional care
- At least 30 days have passed since the death
- No petition has already been made to the court to officially appoint a personal representative
In determining the gross value of the estate, you should value assets as of the date of death, and ignore any unsecured debts (but do subtract things like liens and mortgages). Do not include any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To use the small estate process:
- Prepare a Small Estate Affidavit (you may want to attach a copy of the death certificate and the will, if any)
- Obtain possession of estate assets by presenting the affidavit to current custodians (this affidavit cannot be used to collect real estate)
- Settle the estate in the normal way (pay debts, distribute remaining assets)
- If everything goes smoothly, no court involvement will ever be required
See SD Codified L § 29A-3-1201.
Informal Probate
Informal probate is a bit more complicated than using a small estate affidavit, but is still much less involved than standard probate, and can actually be used for any size estate as long as the overall situation is fairly straightforward.
Requirements
To use informal probate, the following conditions must be true:
- At least 30 days, and no more than 3 years, have passed since the death
- No petition has already been made to the court to officially appoint a personal representative
Process
To settle an estate via informal probate:
- Submit to the court an Application for Informal Probate (see below)
- If anyone has officially demanded notice according to SD Codified L § 29A-3-204 you must provided notice of your Application according to SD Codified L § 29A-1-401
- Upon approval, the court will appoint you as personal representative and issue you "Letters"
- Use your "Letters" to collect estate assets, and then settle the estate in the normal way (pay debts, make distributions)
- At least 4 months after your appointment (so that the time period for new debt claims has expired), prepare a Final Accounting (consider using the EstateExec Final Accounting Report)
- Prepare a Closing Statement (see below)
- Send a copy of the Closing Statement and the Final Accounting to all people who were entitled to inherit from the estate, and to any unpaid creditors
- Submit the Closing Statement to the court
- If no proceedings are pending in the court one year after you file the closing statement, your appointment terminates
Application
In official terms, you apply for informal "probate" if there is a will, and you apply for informal "appointment" if there is no will. An application must:
- State your interest (e.g., named in the will as personal representative, heir, etc.)
- State the name, birth date, and date of death of the decedent, and the county and state of the decedent's domicile at the time of death
- List the names and addresses of all heirs-at-law and devisees (i.e., people specifically named in a will to inherit), along with the ages of any that are minors
- State whether you have received a demand for notice, or are aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere
- State that the time limit for informal probate has not expired because <3 years have passed since the decedent's death
If there is a will, your application must also state that:
- The original will is in the possession of the court, or accompanies the application, or that a certified copy of a will probated in another jurisdiction accompanies the application
- To best of your knowledge, you believe the will was validly executed
- You believe that the instrument which is the subject of the application is the decedent's will, and that after the exercise of reasonable diligence, you are unaware of any instrument revoking the will or of any other unrevoked testamentary instrument relating to property having a situs in this state under § 29A-1-301
If there is no will, your application must also state:
- After the exercise of reasonable diligence, you are unaware of any unrevoked testamentary instrument relating to property having a situs in this state under § 29A-1-301
- Your name, address, and priority for appointment (as compared to other potential executors) and the names of any other persons having a prior or equal right to the appointment
Closing Statement
A closing statement must state that:
- The time limit for presentation of creditors' claims has expired (i.e., 4 months from the date of your appointment)
- All inheritance taxes and state estate taxes due from the estate have been duly determined and are fully paid
- You have fully administered the estate of the decedent by making payment, settlement, or other disposition of all claims that were properly presented, estate administration expenses, and other charges (list any exceptions), and that the estate assets have been distributed to the rightful recipients.
- If any claims remain unpaid, state whether the you distributed the estate subject to possible liability with the agreement of the distributees, or state in detail other arrangements that have been made to accommodate outstanding liabilities
- You sent a copy of this closing statement and a full accounting to all heirs and devisees who are entitled to distribution of and from the remaining estate assets, and to all known unpaid creditors
See SD Codified L § 29A-3-301 et seq.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in SD, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in SD, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow SD probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Court
In South Dakota, the Clerk of Court at the local Circuit Court handles wills and estate probate.
Estate Debts
Finally, note that as an heir, you are NOT responsible for paying the debts of the SD estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
Additional Information
For more information about inheritances in general, see EstateExec Heir Guide.
In case you're interested, heir rights in other states can be found here:
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