## What is probate, and how does it work in South Dakota? **Probate** is the court-supervised process of: - Validating the deceased person's will (if there is one) - Identifying and inventorying their assets - Notifying creditors and paying off debts - Resolving any disputes among heirs - Distributing what's left to the rightful beneficiaries ### South Dakota's probate framework - **Small-estate threshold:** $100,000 personal property. - **Typical duration:** 6-12 months for informal probate. ## When is probate required? Probate generally has to be opened when the deceased owned: - Real estate in their sole name - Bank or investment accounts in their sole name (without a beneficiary designation) - Personal property of significant value in their sole name - Business interests held in their name Probate is **NOT** generally required for: - Property held in a revocable living trust - Joint-tenancy property (passes to surviving co-owner) - Life insurance with a named beneficiary - Retirement accounts with named beneficiaries (401(k), IRA) - Bank accounts with payable-on-death (POD) designations - Vehicles with transfer-on-death (TOD) titling (where state allows) ## The typical probate process **1. File a petition** — open the case in the deceased's county of residence **2. Get appointed personal representative** — the executor named in the will, or an administrator if there's no will **3. Notify heirs and creditors** — most states require formal notice to interested parties and a public notice in a local newspaper **4. Inventory the estate** — the personal representative files a full list of assets and their values **5. Pay debts** — creditors have a window (typically 3-6 months) to file claims; the personal representative resolves valid claims **6. File tax returns** — the deceased's final income-tax return, and the estate's tax return if applicable. Federal estate tax usually applies only to estates above ~$13M (2024 threshold) but state estate tax thresholds vary. **7. Distribute remaining assets** — to beneficiaries under the will or to heirs by intestate succession **8. Close the estate** — final accounting and order of discharge ## Cost of probate Probate isn't free. Typical costs include: - **Filing fees** — usually $200-$1,500 - **Personal representative fee** — often a percentage of the estate (1-5% in states that allow it; reasonable hourly fee in others) - **Attorney fees** — flat fee or hourly; in CA and FL, statutory percentages apply - **Bond** — surety bond required in some states or for non-resident representatives - **Appraisal fees** — for real estate, businesses, collectibles - **Accounting fees** — for tax returns Total costs commonly run 3-7% of the estate value. Larger or contested estates can be far more expensive. ## Avoiding probate South Dakota residents commonly use one or more of these tools to avoid (or shrink) probate: - **Revocable living trust** — assets titled in the trust pass outside probate - **Joint tenancy with right of survivorship** — for real estate - **Transfer-on-death (TOD) deeds** — for real estate (in states that allow them) - **Payable-on-death (POD) accounts** — for bank accounts - **Beneficiary designations** — on life insurance, retirement accounts - **Lifetime gifting** — within annual exclusion limits - **Small-estate affidavits** — for estates under the statutory threshold ## Contested probate — when things go sideways Probate gets contested when: - Someone challenges the validity of the will (lack of capacity, undue influence, forgery) - Heirs dispute the personal representative's accounting - Creditors fight rejected claims - Beneficiaries disagree over property valuations or distributions Contested cases can drag on for years and consume meaningful chunks of the estate in legal fees. ## What you should do If you've been named executor or are the next of kin: don't try to navigate probate alone. South Dakota probate attorneys typically charge flat fees or modest hourly rates and the process is much smoother with one. If you're planning your own estate, a basic will plus thoughtful beneficiary designations on accounts can dramatically simplify things for your family — and a living trust may eliminate probate entirely. --- *This guide is general information about South Dakota law as of early 2026 and is not legal advice. Probate rules are detailed and small estates have shortcuts that the rules above don't fully describe. Talk to a licensed South Dakota probate or estate-planning attorney about your specific situation.*