Disclaimer: This article provides general information about South Dakota probate law. It is not legal advice. Consult a licensed attorney for guidance on your specific situation.
Detailed Answer
In South Dakota, a will must satisfy formal requirements under SDCL 29A-2-501. The statute requires:
- A written document;
- The testator’s (decedent’s) signature;
- Signatures of two attesting witnesses present at the same time.
Notarization is optional. It converts a valid will into a self-proving will under SDCL 29A-3-401, allowing the court to accept it without live witness testimony.
1. Evaluate for a Holographic Will
South Dakota recognizes holographic wills—handwritten documents signed by the testator—per SDCL 29A-2-502. If every material provision is in the decedent’s handwriting and bears the decedent’s signature, the court may admit it without witnesses.
2. Locate or Secure Witness Testimony
If the will is typed and lacks witness signatures, it generally fails formal requirements. However, you can still petition the court to admit it by offering credible testimony from one or more witnesses under SDCL 29A-3-205. Witnesses can swear by affidavit or appear at a hearing to confirm it was the decedent’s will and that they observed the signing.
3. File a Petition for Probate
To begin, file a Petition for Probate of Will and Appointment of Personal Representative in the county where the decedent resided. Attach:
- The original will or a copy;
- An affidavit from any attesting witness (if available);
- Proof of decedent’s death (certified death certificate).
The court clerk issues notice to heirs and beneficiaries. If no objections arise, and the judge finds formal requirements or statutory exceptions satisfied, the court admits the will and appoints a personal representative.
Helpful Hints
- Notarization isn’t required—only witness signatures matter for validity.
- Search for any witness who saw the decedent sign to cure lack of formal execution.
- Handwritten wills may qualify as holographic; highlight personal handwriting and signature.
- File promptly; statutes impose deadlines for filing a will for probate.
- Consult a probate attorney if heirs contest the will’s validity under SDCL Title 29A.