Detailed Answer
In South Dakota, probate under the Uniform Probate Code (UPC) offers three primary pathways: informal probate, formal probate, and summary probate. These processes replace the traditional “common” and “solemn” form distinctions found in other states. Below is an overview of each method and how they differ.
Informal Probate
- Authority: SDCL § 29A-3-101 (SDCL 29A-3-101)
- Petition: Filed by a personal representative seeking appointment without a hearing if there is no contest.
- Notice: Provided to heirs and beneficiaries, but no published notice unless required.
- Hearing: Not required unless an interested party objects.
- Use case: Uncontested estates with known heirs and clear wills.
Formal Probate
- Authority: SDCL § 29A-3-201 (SDCL 29A-3-201)
- Petition: Filed by a petitioner requesting formal administration.
- Notice: Must be published in a newspaper of general circulation and mailed to heirs, beneficiaries, and creditors.
- Hearing: Mandatory court hearing to prove the will and appoint a personal representative.
- Use case: Contested wills, unknown heirs, missing beneficiaries, or when formal oversight is preferred.
Summary Probate
- Authority: SDCL § 29A-3-701 (SDCL 29A-3-701)
- Eligibility: Estates with total personal property under $100,000 and no real property, or real property under $20,000.
- Process: Simplified petition; limited notice; no bond or detailed accounting.
- Use case: Small estates seeking quick settlement.
Key Differences
- Complexity: Informal is streamlined; formal is comprehensive and includes court supervision.
- Time and Cost: Informal and summary usually resolve faster and at lower cost; formal takes longer and incurs higher fees.
- Creditor Claims: All methods allow creditors to file claims (see SDCL 29A-3-803), but notice requirements vary.
- Contests: Formal probate accommodates will contests and disputes; informal assumes uncontested matters.
Helpful Hints
- Gather the original will, death certificate, deeds, and asset statements before filing.
- Determine estate value early to choose between summary and full administration.
- Review creditor claim deadlines under SDCL 29A-3-803.
- Provide accurate notices to avoid delays or additional court orders.
- Consult an attorney if heirs are missing, assets are complex, or disputes arise.
Disclaimer: This article provides general information about South Dakota probate procedures. It is not legal advice. For guidance on your specific situation, please consult a qualified attorney.