Detailed Answer

Disclaimer: This is general information only and is not legal advice. For guidance about a specific case, consult a licensed South Dakota attorney or the probate court.

In South Dakota, a petition for a year’s allowance asks the probate court to set aside funds from a decedent’s estate to support the surviving spouse and minor children for a period of time following death. When you prepare and file that petition, you should include clear factual information, documentation, and a proposed order so the court can decide promptly. The statutory basis for the family (year’s) allowance under the South Dakota probate code is in the South Dakota Codified Laws; see SDCL 29A-2-803 for the rule that governs allowances to a surviving spouse and minor children: SDCL 29A-2-803.

What to include in the petition

• Caption and court information: Name of the county probate court, the estate name (e.g., Estate of [Decedent’s Name]), and the probate case number (if already assigned).
• Petitioner identification: Full name, address, phone number, relationship to the decedent (for example, surviving spouse or parent of a minor child), and a statement that the petitioner seeks a year’s allowance under SD law.
• Decedent information: Decedent’s full name, date of death, last residence (city and county in South Dakota), and the name of the personal representative or proposed personal representative.
• Legal basis and relief requested: A clear request that the court grant a year’s allowance under SDCL 29A-2-803 and specify the amount sought or ask the court to set a reasonable amount.
• Detailed factual statement supporting the request: Explain why the allowance is needed (e.g., no other adequate support, immediate living expenses), who will benefit (surviving spouse and/or minor children), and any special circumstances (illness, disability, extraordinary expenses).
• Calculation and proposed amount: Show how you calculated the amount requested—monthly needs and total for the year—or request that the court determine a reasonable amount. If you ask for a specific sum, explain line-item expenses (housing, utilities, food, medical, child care).
• Estate assets and liquidity: A summary of known estate assets and available cash or liquid funds, including bank accounts, life insurance payable to the estate, and other sources that could be used to pay the allowance.
• Supporting documents: Attach copies of the decedent’s death certificate, marriage certificate (for surviving spouse), birth certificates for minor children, the estate inventory (if available), bank statements, and any documents that show current income and expenses for the petitioner and dependents.
• Proposed order: A draft order for the judge to sign that indicates the amount of the allowance, who is to receive it, and whether payment should be made immediately from estate funds or on another schedule.
• Verification and signature: A verification page or sworn statement that the facts in the petition are true, signed by the petitioner under penalty of perjury, and dated.
• Certificate of service: A statement showing that the personal representative (or proposed representative), known heirs, beneficiaries, and any interested parties were served with the petition and how service was made (personal service, mail, etc.).

Filing and procedural steps

1. File the petition in the probate court in the county where the decedent resided. The clerk can confirm the proper filing fee and any local form or cover sheet required.
2. Serve the personal representative and other interested parties with a copy of the petition and notice of the hearing. Proper notice gives parties an opportunity to object.
3. Request an expedited hearing if immediate funds are needed for basic living needs; courts will sometimes grant short-term relief pending a full hearing.
4. Bring originals and copies of supporting documents to the hearing. Be prepared to explain and justify the amount requested.
5. If the court grants the allowance, the order will specify priority and the source of payment. Under the probate code, family allowances generally take priority over many other distributions from the estate; see SDCL 29A-2-803 for the statutory priority.

Common reasons a petition is denied or delayed

• Insufficient documentation of need or of beneficiary status.
• Failure to properly serve interested parties or to follow local court procedures.
• Dispute over the amount requested or competing creditor claims that require a clarification of estate liquidity.
• Timing issues—if the estate has already been fully distributed without reserving funds for a family allowance, the court may need additional proceedings to correct distributions.

Helpful Hints

• Check SDCL 29A-2-803 to understand statutory criteria and priority: SDCL 29A-2-803.
• Contact the county probate clerk before drafting the petition to learn about local filing rules, required forms, and fees.
• Serve the personal representative promptly; if no personal representative has been appointed, notify known heirs and beneficiaries.
• Include clear, itemized living expense information to persuade the court that the amount requested is reasonable.
• If immediate cash is needed for shelter, food, or medical care, ask the court for temporary emergency relief on an expedited schedule.
• Keep careful records and copies of everything you file and serve. Bring originals to the hearing.
• Consider consultation with a probate attorney if the estate is complicated, if there are disputes, or if large sums are at issue.

For general probate forms and local contact information, check the South Dakota Unified Judicial System website or contact your county probate clerk.