How to finish probate and get authority to sell estate property in South Dakota

Quick note: This is general information about South Dakota probate law and is not legal advice. Probate can be complex. Consider consulting a licensed South Dakota attorney for help with your situation.

Detailed Answer

This section explains, step by step, what usually must happen when you need to wrap up probate administration in South Dakota and want legal authority to sell real property when the decedent’s will is outdated or creates uncertainty.

1. Understand what “outdated” means

• A later valid will or codicil supersedes an earlier will. If the decedent executed a valid later will, that later document controls the distribution.
• A will can be revoked by a subsequent will, a valid written revocation, or by physically destroying it with intent to revoke.
• “Outdated” can also mean the will doesn’t reflect current assets (for example, the decedent transferred title before death) or the named executor cannot or will not serve.

2. Determine whether probate is required

Not all property goes through probate. Property titled jointly with right of survivorship, property with beneficiary designations (payable-on-death accounts), and some trust assets pass outside probate. If the estate consists mainly of assets with nonprobate transfers, you may not need full probate administration. When probate is required, start by presenting the will (if one exists) and filing a petition in the county circuit court (probate court).

3. File to admit the will and appoint a personal representative

Someone must file a petition to admit the will and to have the court appoint a personal representative (often called an executor or administrator). If the named executor in the will is unwilling or unable to serve, the court will appoint another suitable person. The court issues Letters Testamentary or Letters of Administration as proof of authority to act for the estate. These letters are typically required by title companies and buyers before a sale.

(South Dakota’s probate procedures and rules are found in the state probate statutes: see the South Dakota Codified Laws, Title 29A.)

South Dakota Codified Laws, Title 29A (Probate/Trusts & Estates)

4. Inventory, notice, and creditor period

After appointment, the personal representative inventories assets, gives notice to heirs and known creditors, and follows statutory deadlines for creditor claims and publication. You must follow these steps before distributing assets or closing the estate.

5. Confirm whether the will (or court) grants power to sell real property

• Some wills explicitly give the personal representative authority to sell estate real property without further court order. If the will contains a clear power of sale, present the will and the Letters to the title company or buyer. Even then, the buyer or title company may request a court order to be safe.
• If the will does not grant that power, or if there is doubt (for example, because the will is inconsistent or there’s an earlier will and a later unprobated document), the personal representative should petition the court for authority to sell real property. The court can authorize a sale, often after notice and an opportunity for interested persons to object.

6. Steps to get court authorization to sell

1. File a petition or motion with the probate court requesting authority to sell specific real estate belonging to the estate.
2. Attach an inventory, a proposed purchase agreement or terms (if there is an offer), and a valuation (appraisal or broker opinion of value) to the petition when possible.
3. Provide notice to heirs, devisees, and creditors as required by the court and statute. The court will set a hearing if required.
4. If the court approves, it will enter an order authorizing the sale. The order may set conditions (e.g., sale after advertising, minimum price, or confirmation hearing).
5. After the sale, record the deed signed by the personal representative and reference the court order. The buyer and title company will usually want a certified copy of the Letters and the sale order to insure title.

7. Special issues when the will is outdated or ambiguous

• If there is a later unprobated document claiming to be a newer will, the court must decide whether to admit it to probate. Interested persons can contest admission. Keep in mind challenges delay administration and sales.
• If the will names an executor who predeceased the decedent or is unavailable, the court can appoint a successor personal representative. The estate does not fail for that reason alone.
• If the will’s beneficiaries disagree about a sale, the court resolves disputes or may order a sale if it finds the sale is necessary or in the best interest of the estate.
• Surviving spouse rights, homestead allowances, and family allowances can affect the availability of the property to sell or the timing of distribution. Address these claims early.

8. Practical steps to protect the sale and transfer title

• Obtain certified Letters Testamentary or Letters of Administration from the probate clerk.
• Get a court order authorizing sale if the will lacks clear power of sale or if buyers/title companies request it.
• Have the deed prepared for signature by the personal representative and include the court order reference.
• Work with a title company or real estate attorney to clear any liens or title issues before closing.
• Document payment of creditors and estate expenses, then distribute remaining proceeds according to the will or intestacy rules.

What to expect in timeline and costs

Probate timelines vary. Simple probates with cooperation and clear wills may wrap up in months. Contested matters, ambiguous or multiple wills, or sale disputes can extend the process significantly. Expect court filing fees, publication costs, appraisal fees, title and closing costs, and attorney fees if you hire counsel.

When to hire a South Dakota attorney

Consider hiring an attorney if any of the following apply:

• There is a later unprobated document or you suspect a newer will exists.
• Beneficiaries object to admitting the will or to selling the property.
• There are questions about the decedent’s ownership of the property (trusts, joint tenancy, or beneficiary deeds).
• There are potential claims by a surviving spouse, creditors, or unknown heirs.
• You need to expedite sale or require complex title work.

Relevant South Dakota law

South Dakota’s probate and estate rules are codified in the state statutes governing wills, probate administration, powers of personal representatives, and sale of estate property. For the official statutory framework, see the South Dakota Codified Laws, Title 29A:

https://sdlegislature.gov/Statutes/Title/29A

Helpful Hints

• Before filing anything, collect the original will(s), deeds, bank statements, account beneficiary forms, vehicle titles, and any trust documents. The original will is needed to probate.
• Keep a written inventory and copies of each document you file with the court.
• Get at least one market valuation (appraisal or broker price opinion) before asking the court to authorize a sale.
• Buyers often require a court order or certified Letters before closing. Having those ready speeds the sale.
• If the estate appears small or the property value is low, ask an attorney whether a simplified or small-estate procedure might apply.
• Communicate with heirs and potential buyers early. Clear communication reduces objections and delays.
• When in doubt about interpretation of an old will or the need for court authority, err on the side of getting a court order authorizing the sale—this protects the personal representative and the buyer.

Final reminder: This article is informational only and does not create an attorney-client relationship. If you need advice specific to a situation in South Dakota, speak with a licensed South Dakota attorney who handles probate and real estate matters.