Detailed Answer
When a parent dies owning real estate solely in their name in South Dakota, the property doesn’t automatically pass to heirs. Instead, title transfers through probate or a nonprobate mechanism if one exists. Follow these steps to determine current ownership:
1. Review the Deed and Estate Documents
Visit the county register of deeds and obtain a certified copy of the deed. Confirm there is no joint tenancy, no right of survivorship, and no recorded enhanced life estate or beneficiary designation (e.g., life estate deed with remainder beneficiary).
2. Check for a Will or Trust
If your parent left a valid will or a living trust, the named executor or successor trustee handles property distribution. The will must be filed with the probate court; a recorded trust deed lets the trustee transfer title without formal probate.
3. Intestate Succession Under South Dakota Law
If there’s no will or valid nonprobate transfer, South Dakota’s Uniform Probate Code dictates distribution by intestate succession. Under SDCL 29A-3-101, property passes to the surviving spouse and descendants in statutory shares. For details, see SDCL 29A-3-101.
4. Summary (Small Estate) Administration
For estates meeting the small estate criteria, South Dakota offers a simplified probate process. Under SDCL 29A-3-1007, you may file an affidavit and obtain a court certificate to transfer title without a full probate proceeding. Review the statute here: SDCL 29A-3-1007.
5. Formal Probate Administration
If the estate exceeds the small estate threshold or has multiple claimants, you must open a formal probate case in the circuit court where your parent resided. The court appoints a personal representative to pay debts and distribute real property according to the will or intestacy rules.
6. Record the Transfer
After probate or summary administration, record the court’s order or certificate with the register of deeds. Prepare a new deed transferring title to the heir or devisee and pay any required recording fees.
Helpful Hints
- Obtain multiple certified copies of the death certificate early; many offices require originals.
- Search for codicils, trusts, or beneficiary deeds that might bypass probate.
- Check for mortgages, liens, or property tax delinquencies before transferring title.
- Keep detailed records of filings, court orders, and communications throughout the process.
- Consider consulting a probate attorney if the estate is complex or if heirs disagree.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.