Detailed answer

When someone who has priority to be appointed as personal representative (sometimes called an executor or administrator) will not sign a written renunciation, you still have options under South Dakota probate practice. This section explains how appointment priority generally works, why a signed renunciation helps, and what you can do if the relative (in this case, an uncle) refuses to sign.

How appointment priority works in South Dakota

South Dakota follows a probate code that sets out who has priority to serve as a personal representative. Priority is generally given to the person or class of persons described by statute (for example, a surviving spouse, adult children, or other heirs). If a higher‑priority person is available and willing, the court normally appoints that person. For the governing statutes, see South Dakota Codified Laws, Title 29A (Probate and Estates):
SDCL Title 29A.

Why a written renunciation matters

A written renunciation (a document in which the person entitled to appointment formally declines) is the cleanest way to move appointment down the priority list. When a person signs a renunciation, the court treats that person as having waived appointment and you can pursue appointment without further dispute from that person.

If the uncle refuses to sign, practical next steps

1. Confirm whether the uncle actually has priority. Check the statutory priority order under SDCL Title 29A to confirm whether your uncle stands ahead of you for appointment. If someone else (e.g., a spouse or adult child) has higher priority, that person’s willingness matters first.
2. Ask the clerk of court how they handle refusal. County probate clerks can explain local filing procedures and what evidence the court will accept showing that a person is unwilling to serve.
3. Try to resolve the refusal informally. Explain the responsibilities and protections of the role (bond, compensation, ability to hire an attorney). Offer to share duties, assure oversight, or propose a neutral third‑party co‑administrator if that will persuade your uncle to renounce. Sometimes people refuse only because they misunderstand the job or worry about liability.
4. Request a signed statement of refusal or a sworn affidavit. If the uncle will not sign a renunciation form but will state on the record that he declines, ask him to sign a short affidavit or sign a note filed with the court saying he does not wish to serve. Many courts accept a written statement that the person declines even if it’s not a standardized renunciation form.
5. File a petition to appoint the court’s next available qualified person. If the uncle persists in refusing to renounce, you can file a petition for appointment asking the court to appoint you (or another qualified person). In that petition you should identify the interested parties, state who has priority and whether they are willing, and provide any evidence of the uncle’s refusal or inability to serve. The court has discretion to appoint the person it finds best suited if a higher‑priority person is unwilling or unsuitable.
6. Ask the court to find the uncle unsuitable or unavailable, if appropriate. Grounds for finding someone not suitable include incapacity, unavailability, conflict of interest, criminal convictions that bear on fiduciary trust, or a demonstrated unwillingness to perform fiduciary duties. If the court finds the uncle unsuitable or unwilling, it can skip him and appoint the next eligible person.
7. Consider seeking an order compelling cooperation only in narrow circumstances. Courts generally cannot force a private person to serve as a fiduciary against their will. But they can make findings about availability and suitability that affect priority, and they can appoint someone else when appropriate.
8. Get temporary or emergency authority if estate assets are at risk. If immediate action is necessary to preserve estate property, you can ask the court for temporary letters or an emergency administrator pending the court’s formal appointment process.
9. Keep good records. Save copies of correspondence asking the uncle to renounce, notes of conversations, and any written responses. If you must ask the court to decide, this documentation helps show that you attempted to resolve the issue outside court.

What the court will consider

The probate court balances statutory priority, the best interests of the estate and creditors, the wishes of the decedent (if known), and the competence and availability of potential appointees. If you show that the uncle is unwilling or unable to serve, the court will typically appoint the next qualified person who consents. For the statutory framework governing appointment and administration, see SDCL Title 29A:
https://sdlegislature.gov/Statutes/Codified_Laws/DisplayTitle.aspx?title=29A.

When to hire a probate attorney

Hire an attorney if the uncle contests the probate, if the estate is complex, if there are significant assets or creditors, or if you need someone to prepare and file the petition and represent you at a hearing. An attorney can explain local court practice, prepare the renunciation or petition forms, and present evidence to the judge showing the uncle’s unwillingness.

Hypothetical example

Imagine a parent dies intestate and the surviving sibling (the decedent’s brother) has statutory priority over the decedent’s adult child. The sibling refuses to sign a renunciation because he is worried about liability. You first ask the sibling to sign an affidavit declining to serve. He refuses. You then file a petition in the county probate court explaining the situation, supplying evidence that the sibling is unwilling to act, and requesting appointment. The judge either accepts the affidavit of refusal (if later signed) or, after a hearing, finds the sibling unwilling and appoints you as the personal representative.

Helpful hints

• Talk to the probate clerk in the county where the decedent lived to learn filing steps and local forms.
• Keep communication short and professional; a refusal in writing or on the record is often enough for the court.
• Offer to reduce the uncle’s concerns (e.g., explain bonding, offer an indemnity, or suggest co‑administration).
• Collect documents: death certificate, list of heirs, asset inventory and any wills or beneficiary designations.
• File for temporary appointment if estate assets are in danger of loss or theft.
• When in doubt, consult a South Dakota probate attorney to draft the petition or represent you at a hearing.
• Expect some fees and court costs; the court can later allow the personal representative reasonable compensation from the estate.
• Don’t assume a private conversation substitutes for a filed statement; the court needs formal evidence if there’s a dispute.