Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.
Detailed Answer
Locating and verifying original wills and codicils ensures a smooth probate process in South Dakota. Follow these steps:
1. Search Physical and Digital Records
Begin by reviewing the decedent’s personal papers: files, safe deposit boxes, home office, and digital storage. Look for labeled folders, scanned documents, or notes referencing estate planning.
2. Contact Potential Custodians
The testator may have designated a custodian. Common holders include:
- An attorney’s office
- A bank or trust department
- Family members or close friends
- Registered agent or escrow services
Request the original will or any codicils they hold.
3. Check with the Circuit Court Clerk
Under SDCL 29A-3-304, a custodian may file a will with the circuit court clerk within 30 days after the testator’s death. Contact the clerk in the county where the decedent resided. You can:
- Search the will registry for filed originals.
- Request certified copies of any deposited documents.
4. Verify Authenticity
After locating the original, confirm its validity by checking for:
- Testator’s signature
- Signatures of at least two attesting witnesses (SDCL 29A-3-301)
- A self-proving affidavit before a notary public (SDCL 29A-3-502)
If the will includes a self-proving affidavit, the court can admit it without requiring live witness testimony.
5. Handle Lost or Unlocatable Originals
If you cannot locate the original, initiate lost will proceedings. Under SDCL 29A-3-623, you may submit a copy and present witness testimony about the document’s execution and contents. The court will assess the evidence before admitting a copy to probate.
Helpful Hints
- Ask close family members, friends, or executors where they last saw the will.
- Search cloud storage, email attachments, and electronic vaults for scanned copies.
- Review safe deposit box inventories; banks may require a court order to grant access.
- Check emails, calendars, or appointment notes for details on estate planning meetings.
- Consult the decedent’s estate planning attorney for archived drafts or custody logs.