Disclaimer: This article is for educational purposes only and is not legal advice.
Detailed Answer
1. Open Probate in South Dakota
When a homeowner dies without a will (intestate), you must open a probate case in the circuit court of the county where the decedent lived. An interested party—often a close relative—files a Petition for Probate. The court then appoints a personal representative (also called an administrator) to manage the estate. See SDCL §29A-3-301 for filing requirements (link).
2. Determine Heirs Under Intestate Succession
With no will, ownership passes by intestate succession. South Dakota law (SDCL §29A-2-102) sets the order of inheritance:
- If the decedent has a surviving spouse and no descendants, the spouse receives the entire estate.
- If the decedent has a surviving spouse and descendants (who are also the spouse’s descendants), the spouse gets one-half of the intestate estate; the remaining half divides equally among the descendants.
- If there is no spouse but there are descendants, the descendants inherit in equal shares.
- If there are no spouse or descendants, the estate passes to parents, then siblings, and so on.
For full details, see SDCL §29A-2-102 (link).
3. Petition for Determination of Heirs
The personal representative files a Petition for Determination of Heirs. The court issues an Order of Heirship naming each heir and their share. That process follows SDCL §29A-3-307 (link).
4. Transfer Title with a New Deed
After the court signs the Order of Heirship and the estate closes, the personal representative or heirs prepare a new deed conveying the property. Usually this is a Commissioner’s Deed or a Quitclaim Deed executed by the administrator and signed by all heirs. The deed must:
- Reference the probate case and the Order of Heirship.
- Identify the heirs who receive title and their percentage interests.
- Be notarized and recorded with the county Register of Deeds.
Once recorded, the county issues a new abstract and updates the tax records in each heir’s name.
Helpful Hints
- Gather death certificate and all ownership documents before filing probate.
- Interview family members early to identify all possible heirs.
- Consult county-specific probate rules; some counties offer simplified or small-estate procedures if the estate value is low.
- Keep careful records of all filings, notices, and court orders.
- Speak with a South Dakota probate attorney if complex disputes arise between heirs.