Disclaimer: This article provides general information on South Dakota probate procedures. It is not legal advice. Always consult a qualified attorney for guidance on your specific situation.
Detailed Answer
Under South Dakota law, you generally need a certified death certificate to open a probate estate. See SDCL § 29A-3-501. The court relies on this document to establish the date and place of death and the identity of the decedent.
If a certified death certificate is not yet available—because records are delayed, lost, or the death occurred out of state—you may petition the probate court to accept alternative proof of death. Courts have discretion to allow evidence such as a published obituary, sworn affidavits from family members or witnesses, medical records, or other corroborating documents. To do this, you must:
- File your probate petition in the appropriate county along with an affidavit explaining why the death certificate is unavailable.
- Attach a copy of the obituary plus sworn affidavits from at least two individuals with personal knowledge of the death.
- Include any additional records (e.g., hospital discharge papers or a coroner’s report) that support the date and place of death.
The court will review your submission and may schedule a hearing. If it finds the evidence sufficient, it will issue an order allowing probate to proceed. Once the court admits the petition, the clerk can issue letters testamentary or of administration, enabling you to manage the decedent’s estate.
Alternatively, you can obtain a delayed certificate of death through the South Dakota Department of Health. Under SDCL § 34-24-52, you may submit secondary evidence—such as obituaries, medical records, and affidavits—to secure an official death record. Once issued, file the certified delayed certificate with the probate court to fulfill the requirement.
Helpful Hints
- Start by contacting the Register of Deeds or Vital Records office early to request certified or delayed death certificates.
- Prepare sworn affidavits that clearly state each witness’s relationship to the decedent and how they learned of the death.
- Submit all documents in certified or notarized form, per local court rules.
- Verify the probate filing requirements on the county court’s website or clerk’s office.
- Consider consulting an estate attorney to ensure compliance with South Dakota probate statutes and local procedures.