Settling Small Estates (SD)

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:

1. Prepare a Small Estate Affidavit (you may want to attach a copy of the death certificate and the will, if any)
2. Obtain possession of estate assets by presenting the affidavit to current custodians (this affidavit cannot be used to collect real estate)
3. Settle the estate in the normal way (pay debts, distribute remaining assets)
4. If everything goes smoothly, no court involvement will ever be required

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:

1. Submit to the court an Application for Informal Probate (see below)
2. 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
3. Upon approval, the court will appoint you as personal representative and issue you "Letters"
4. Use your "Letters" to collect estate assets, and then settle the estate in the normal way (pay debts, make distributions)
5. 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)
6. Prepare a Closing Statement (see below)
7. 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
8. Submit the Closing Statement to the court
9. 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