Detailed Answer
When heirs inherit property located in a state other than where the decedent’s primary probate took place, they must comply with the local law of the state where that real estate sits. Under South Dakota law, property in South Dakota can only transfer through a properly executed deed filed in the county where the land lies. Heirs generally do not sign deeds directly unless the estate qualifies as a small estate or the heirs act under a statutory process. Instead, a personal representative (executor or administrator) handles the conveyance.
Ancillary Probate and Ancillary Personal Representative’s Deed
If the primary probate occurs outside South Dakota but the decedent owned real property here, an ancillary probate in South Dakota is required. The ancillary personal representative obtains South Dakota Letters of Administration. Once appointed, this fiduciary may execute an “Executor’s Deed” conveying the decedent’s interest. South Dakota law authorizes this under SDCL 29A-3-715. The deed must:
- State the personal representative’s name and authority;
- Identify the estate by name and cause number;
- Include the full legal description of the property;
- Name the grantee (person or entity receiving title).
Quitclaim and Heir’s Deeds
If heirs have clear title through intestacy or a small‐estate affidavit under SDCL 29A-3-722, they may use a “Statutory Deed” or a simple quitclaim deed. A quitclaim deed transfers whatever interest the grantor holds without warranties. It requires:
- Signature by all grantors (heirs);
- Notarized acknowledgment;
- Accurate legal description;
- Proper recording.
Recording the Deed
To record any deed, file the original document and, if applicable, a certified copy of the Letters of Administration with the Register of Deeds in the county where the property lies. Recording fees follow SDCL 57-1-1. Once recorded, the deed provides constructive notice and completes the transfer.
Disclaimer: This is not legal advice. Consult a licensed attorney before signing or recording any deed.
Helpful Hints
- Confirm whether ancillary probate is needed in the state where the property sits.
- Use a deed form approved by the county Register of Deeds.
- Obtain certified Letters of Administration before executing an executor’s deed.
- Verify the legal description against the county survey records.
- Ensure all heirs or the personal representative sign the deed in the presence of a notary.
- Pay recording fees and check for additional county requirements.