Detailed Answer
This article explains why you may still need to open probate in
1. Automatic Transfer Methods for Real Property
- Joint Tenancy with Right of Survivorship: When two or more people hold property as joint tenants, the survivor automatically owns the entire property at death (SDCL § 43-9-1). No probate is needed for that parcel.
- Transfer-on-Death Deed (TODD): Under SDCL § 43-9A-5, you can file a TODD that names a beneficiary to receive title at death without probate. The deed must comply with statutory formalities and remain unrevoked.
- Living Trust: Real property titled in a revocable living trust avoids probate. Upon death, the successor trustee follows trust terms to distribute assets.
2. Why Probate May Still Be Required
Even if one parcel passes outside probate, the decedent’s estate may include other assets—bank accounts, vehicles, personal property, stocks, business interests, or insurance proceeds—that require probate to transfer clear title or to resolve creditor claims. Key reasons to probate include:
- Validating the Will: Probate confirms the will is genuine (SDCL § 29A-3-302) and appoints a personal representative (executor) to administer the estate.
- Paying Debts and Taxes: The personal representative notifies creditors, pays valid debts, and files final income and estate tax returns (SDCL §§ 29A-3-308 to 29A-3-317).
- Distributing Residue: After debts and expenses, probate ensures remaining assets pass in accordance with the will (or by intestacy if no valid will) (SDCL § 29A-3-1001).
- Clearing Title: Even if real property already transferred, probate provides a court order clarifying any liens or claims against other real estate or personal property.
3. When Small Estates Procedures Apply
South Dakota offers a simplified process for “small estates” under SDCL § 29A-3-1201 when the total value of probate assets (excluding exempt property) is under $50,000. This can avoid formal probate by filing an affidavit instead of a full administration.
Key steps: File an affidavit, wait the required notice period, then use the court-issued order to collect assets.
4. Practical Example
Jane Doe owns her home in joint tenancy with her sister, so it passes outside probate. Jane also left a will that bequeaths her bank accounts and personal belongings. To distribute those assets, her personal representative must still open probate, validate the will, pay any debts, and distribute the remainder according to Jane’s wishes.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed attorney in South Dakota to discuss your specific situation.
Helpful Hints
- Inventory all assets—identify which pass outside probate and which require court administration.
- Review existing deeds: confirm joint tenancy language or TODD validity.
- Consider small estate affidavit if total probate assets are under $50,000 (SDCL § 29A-3-1201).
- Meet statutory deadlines for creditor notice and tax filings to avoid personal liability as a personal representative.
- Keep records: maintain receipts, court filings, and correspondence throughout probate.