Disclaimer: This information is for educational purposes only and does not constitute legal advice. Always consult a qualified attorney about your specific situation.
Detailed Answer
Under South Dakota law, the court appoints a personal representative (administrator or executor) based on a fixed priority list in SDCL 29A-3-302. The default order is:
- Surviving spouse
- Adult children or their descendants
- Parents
- Siblings
- Next of kin
If a higher-priority heir exists, the client may still secure appointment by one of these methods:
- Waiver or written consent: The higher-priority heir can sign a waiver or consent form relinquishing their right to serve. South Dakota courts generally respect a valid, notarized waiver. This waiver is filed with the petition for appointment.
- Failure to act within 30 days: SDCL 29A-3-308 permits appointment of a lower-priority heir if a higher-priority heir fails to petition within 30 days after being served notice. See SDCL 29A-3-308.
- Disqualification for cause: A court may remove or refuse to appoint an heir who is unfit, incompetent, convicted of certain felonies, or has a conflict of interest. Grounds for disqualification appear in SDCL 29A-3-307.
- Court discretion in the estate’s best interest: Although rare, a judge can exercise discretion to appoint a more suitable administrator if all statutory conditions are met and the estate’s administration would benefit.
For example, if Jane Smith (surviving spouse) declines to serve and files a notarized waiver, her adult child cannot block the client’s appointment. The client then files the waiver with the clerk of courts, serves notice to interested parties, and requests a hearing. With no objection, the court issues letters of administration in the client’s name.
Helpful Hints
- File the initial petition and waivers promptly to avoid objections or missed deadlines.
- Serve all interested parties per SDCL 29A-3-308 to trigger the 30-day window.
- Gather evidence of a higher-priority heir’s unfitness (e.g., criminal record, incapacity).
- Prepare a clear affidavit detailing why appointment of the client serves the estate’s best interest.
- Consider mediation or informal agreement to resolve heir disputes before court.