Disclaimer: This article is for educational purposes and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.
What Is an Heirship Affidavit?
An heirship affidavit, often called a small estate affidavit in South Dakota, is a sworn statement identifying the heirs of a deceased person. It allows eligible individuals to collect personal property without a full probate process. South Dakota Codified Laws, Section 29A-3-602, authorizes this streamlined procedure for estates valued at $40,000 or less. (SDCL 29A-3-602).
When Can You Use a Small Estate Affidavit in South Dakota?
- The decedent has been deceased for at least 120 days.
- No formal probate or administration has been opened.
- The total value of the decedent’s personal property does not exceed $40,000.
Step-by-Step Guide to Preparing an Affidavit of Heirship
- Gather Required Documents: Obtain a certified copy of the death certificate and documentation reflecting the value of personal property (bank statements, vehicle titles, etc.).
- Identify All Heirs: List each heir’s full name, current address, relationship to the decedent, and the share they are entitled to under intestate succession rules (see Title 29A, Ch. 2 of the SDCL).
- Draft the Affidavit: Include:
- Decedent’s full name, date of death, and county of residence.
- Statement that no pending probate exists.
- Itemized list of personal property with estimated values.
- Names, addresses, and shares of each heir.
- Affirmation that the estate value is under $40,000.
- Sign and Notarize: All affiants must sign the affidavit before a notary public.
- File with the Clerk of Courts: Submit the original affidavit to the clerk in the county where the decedent was domiciled.
- Observe the 30-Day Period: After filing, wait at least 30 days before distributing any assets, as required by statute.
- Distribute the Assets: Disburse personal property to each heir according to the shares outlined in the affidavit.
- Maintain Records: Keep copies of the filed affidavit, proof of distribution, and any supporting documentation.
Next Steps
Once you complete and file the affidavit of heirship, maintain detailed records of the distribution and consider seeking legal advice if any disputes arise or if the estate’s value exceeds the statutory limit.
Helpful Hints
- Confirm the total value of all personal property does not exceed the $40,000 limit under SDCL 29A-3-602.
- Order multiple certified copies of the death certificate to handle filings and asset transfers.
- Review intestate succession rules (SDCL Title 29A, Chapter 2) to determine accurate heir shares.
- Check with the clerk of courts about any local filing fees or form requirements.
- Ensure each heir receives a copy of the filed affidavit to prevent future disputes.
- Consult a qualified attorney if the estate includes debts, real estate, or complex assets.