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This explains how to proceed in South Dakota when the original will is in a family member’s possession but they refuse to turn it over. It covers what the probate court expects, your practical options, and steps to get the will filed so the decedent’s wishes can be honored. This is educational information only and not legal advice.

What South Dakota law governs wills and probate?

South Dakota uses the Uniform Probate Code provisions found in Title 29A of the South Dakota Codified Laws. Those statutes set out how wills are admitted to probate, how to open an estate, and how courts handle problems such as a lost or withheld original will. You can review the probate statutes at the South Dakota Legislature website: South Dakota Codified Laws, Title 29A.

How the court treats an original will that someone is refusing to produce

The probate court prefers the original signed will. If the person who has it refuses to give it up, the court has tools to address that: ordering the person to produce the document, compelling testimony from witnesses, admitting a copy if the original is lost or withheld (after the court finds appropriate proof), and imposing civil remedies (contempt or monetary sanctions) if someone refuses to obey a court order.

Practical step-by-step process

1. Gather what you have now.

   Collect any copies of the will (photocopy, scanned PDF, email, or even a photo), the decedent’s death certificate, the names and contact information of the attesting witnesses (if known), and any communications that show the step-sister has the original or refuses to return it.

2. Try an initial demand.

   Send a written demand (certified mail recommended) to the person holding the original asking for delivery to the appropriate probate court or to you within a fixed time. Include a polite warning that you will ask the court to compel production if they refuse. Keep copies of the letter and proof of mailing.

3. File a probate petition with a copy of the will.

   If the decedent died and an executor or personal representative needs appointment, file a petition to open probate in the county where the decedent lived. Attach the best copy you have and explain in the petition that the original is being withheld by a named person. The petition asks the court to appoint a personal representative and to take steps to admit the will despite the original being unavailable.

4. Ask the court to issue a subpoena or an order to produce the original.

   When you file the petition you can also ask the court to require the person who has the original to appear and bring the document (a subpoena duces tecum or a court order). If the court orders production, failure to obey can lead to contempt proceedings or other sanctions.

5. Prepare witness proof.

   If the original cannot be produced, South Dakota law allows the court to admit a copy where there is satisfactory proof of the will’s execution and contents. That proof usually comes from the attesting witnesses or other people who can testify under oath about the will’s terms and the signature. Get signed witness affidavits or be prepared to have witnesses testify in court.

6. Seek admission of a copy or a lost-will hearing.

   If the step-sister still refuses to produce the original, you can ask the court to admit a copy or to hold a hearing to determine whether the original was lost or destroyed and whether the copy truly reflects the decedent’s intent. The court will weigh witness testimony and other evidence before admitting a copy.

7. Use civil remedies if needed.

   If the person intentionally withholds the will after a court order, you may ask the court to hold that person in contempt or to award other civil relief. In extreme cases, the facts may support a claim for conversion (wrongful withholding) or other remedies.

What evidence helps the most

• Any original or clear copy (photo, scan, email) of the will.
• Affidavits or contact info for the attesting witnesses who signed the will.
• Communications showing possession by the person refusing to produce (texts, emails, recorded delivery receipts, or witness statements).
• Death certificate and proof of decedent’s residence/county of probate.
• Evidence of the decedent’s signature style (prior signed documents) to help authenticate a copy if needed.

Timelines and costs

Probate timelines vary. A simple uncontested probate with the original can take a few months. If the original is withheld and you need hearings, subpoenas, or contempt proceedings, the process can stretch longer and cost more. Filing fees and service fees are modest, but attorney fees will depend on complexity. Contact a probate attorney early to estimate likely costs for your situation.

When to hire a probate attorney

Consider hiring an attorney if: the holder refuses to cooperate after a demand; witnesses are unavailable; the will’s authenticity may be disputed; multiple heirs may contest; or you need to pursue court orders or contempt actions. An attorney can draft the petition, obtain subpoenas, prepare witness affidavits, and represent you at hearings.

Sample court remedies you can request

• Order compelling production of the original will (subpoena/duces tecum).
• Hearing to admit a copy of the will or to determine whether the original was lost or destroyed.
• Appointment of a temporary personal representative to protect estate assets.
• Civil sanctions or contempt proceedings for refusal to follow a court order.

Where to find South Dakota forms and statute information

Start with the South Dakota statutes on probate (Title 29A): https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Title=29A. County circuit courts handle probate filings; your county court clerk or the South Dakota Unified Judicial System can direct you to local probate forms and filing instructions.

Bottom line

If a family member refuses to turn over an original will in South Dakota, start by preserving evidence and sending a written demand. Then file a probate petition attaching the best available copy and ask the court to issue an order or subpoena to produce the original. If production still fails, the court can hold hearings to admit a copy, compel witnesses, and impose sanctions where appropriate. Getting an experienced probate attorney will speed the process and improve your chances of a favorable result.

Disclaimer

This article is for general informational purposes only and is not legal advice. For advice about your specific situation, consult a licensed South Dakota probate attorney.

Helpful Hints

• Bring any copy of the will to the first meeting with an attorney or the court—even a photo on your phone can be important.
• Collect witness names ASAP; memories fade and witness availability changes.
• Keep a written record of all communications with the person holding the will (dates, times, content).
• Send a certified demand letter giving a short deadline; the letter documents that you asked before going to court.
• Ask the court for appointment of a temporary personal representative if estate assets are at risk or need protection.
• Be prepared to prove the will’s contents—copies alone can be admitted, but the court needs convincing proof if the original is missing.
• Do not try to forcibly take the document yourself; that can create criminal exposure and weaken your position in court.
• Contact the county probate clerk early to learn local filing procedures and fees.