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South Dakota Last Will and Testament

A South Dakota will needs 2 witnesses, or write a valid handwritten (holographic) will with none. Free template with requirements. Attorney review available.

Introduction

A last will and testament is a legal document that states who receives your property when you die and names the personal representative (executor) who will carry out your wishes; it can also name a guardian for minor children. In South Dakota you must be at least 18 and of sound mind to make a will (SDCL 29A-2-501). A standard will is signed by the testator and witnessed by two or more individuals who sign in the testator's conscious presence after watching the signing or the testator's acknowledgment of the signature (SDCL 29A-2-502). South Dakota does not disqualify an interested witness, so a beneficiary who signs as a witness does not void the will or the gift (SDCL 29A-2-505), though using disinterested witnesses is still the safer practice. The will itself does not need a notary; the two witnesses are what make it valid. You may add a self-proving affidavit, a separate sworn statement signed by the testator and witnesses before a notary, so the will can be admitted to probate without live witness testimony (SDCL 29A-2-504). South Dakota also recognizes a holographic will, one that is valid whether or not it is witnessed if the signature and the material portions are in the testator's own handwriting (SDCL 29A-2-502(a)). This document is governed by South Dakota Codified Laws Title 29A, Chapter 29A-2.

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Key Things to Know

  1. 1

    A last will and testament is a legal document that states who receives your property and who administers your estate after you die. It can also name a guardian for any minor children.

  2. 2

    You need two witnesses. A South Dakota will that is not holographic must be signed by the testator (or by someone else in the testator's conscious presence and direction) and then signed in the testator's conscious presence by two or more individuals who watched the signing or the testator's acknowledgment of it (SDCL 29A-2-502). An interested witness, meaning one who is also a beneficiary, does not invalidate the will or that person's gift under South Dakota law (SDCL 29A-2-505), but choosing two disinterested witnesses avoids any risk of a later challenge.

  3. 3

    A self-proving affidavit is available. This is a separate sworn statement, signed by the testator and the witnesses before a notary public or other officer authorized to administer oaths, that lets the will be admitted to probate without tracking down the witnesses to testify (SDCL 29A-2-504). It can be signed at the same time as the will or added later.

  4. 4

    Handwritten (holographic) wills are recognized. A South Dakota will is valid as a holographic will, whether or not it is witnessed, if the signature and the material portions of the document are in the testator's own handwriting (SDCL 29A-2-502(a)).

  5. 5

    The will itself does not need a notary. Two witnesses, not a notary, are what makes a standard South Dakota will valid. A notary is only used for the optional self-proving affidavit.

  6. 6

    You must be 18 and of sound mind. South Dakota law lets an individual eighteen or more years of age who is of sound mind make a will (SDCL 29A-2-501).

  7. 7

    A will can be revoked by a later will or by a physical act. You can revoke a South Dakota will, in whole or in part, by executing a subsequent will that revokes it expressly or by inconsistency, or by burning, tearing, canceling, obliterating, or destroying it with the intent to revoke (SDCL 29A-2-507). Divorce or annulment also automatically revokes any gift or appointment the will made to a former spouse (SDCL 29A-2-804).

Key decisions before you file

Before you file a Last Will and Testament in South Dakota, a few decisions shape the document: which option to choose and what each one means. The Last Will and Testament guide walks through them.

Open the Last Will and Testament guide

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SOUTH DAKOTA LAST WILL AND TESTAMENT

  1. DECLARATION AND REVOCATION OF PRIOR WILLS I, [TESTATOR NAME], a resident of [COUNTY] County, South Dakota, being eighteen years of age or older and of sound mind (SDCL 29A-2-501), declare this to be my Last Will and Testament and revoke all prior wills and codicils I have made.

  2. APPOINTMENT OF PERSONAL REPRESENTATIVE (EXECUTOR) I name [EXECUTOR NAME] as the personal representative of my estate. If that person cannot or will not serve, I name [SUCCESSOR EXECUTOR NAME] as successor personal representative. My personal representative shall pay my debts and expenses and distribute my estate under this will.

  3. DISPOSITION OF PROPERTY [INSERT specific gifts and bequests: describe each item or amount of property and the beneficiary who receives it.]

  4. RESIDUARY CLAUSE I give the rest and residue of my estate, meaning everything not specifically listed above, to [RESIDUARY BENEFICIARY NAME]. If that beneficiary does not survive me, I give the residue to [ALTERNATE BENEFICIARY NAME].

  5. ATTESTATION CLAUSE This will was signed by me, the testator, on [DATE], and at my request, in my conscious presence, and in the conscious presence of each other, the following two witnesses signed below after watching me sign or acknowledge my signature, as required by SDCL 29A-2-502. Each witness confirms that I appeared to be of sound mind and under no duress at the time of signing.

Signed: _____________________________ [TESTATOR NAME], Testator

Witness 1: _____________________________ Address: ___________________ [WITNESS 1 NAME]

Witness 2: _____________________________ Address: ___________________ [WITNESS 2 NAME]

  1. SELF-PROVING AFFIDAVIT (OPTIONAL) South Dakota recognizes a self-proving affidavit under SDCL 29A-2-504. If the testator and witnesses choose to make the will self-proved, each signs the following sworn statement before a notary public or other officer authorized to administer oaths, in addition to the signatures above.

State of South Dakota, County of [COUNTY]. We, [TESTATOR NAME], [WITNESS 1 NAME], and [WITNESS 2 NAME], being first duly sworn, declare to the officer taking this acknowledgment that the testator signed this instrument as a testator's last will, that the testator signed willingly, and that each witness signed as witness in the testator's presence.

[TESTATOR NAME], Testator [WITNESS 1 NAME], Witness

[WITNESS 2 NAME], Witness

Subscribed and sworn before me on [DATE].

Notary Public, State of South Dakota My commission expires: [DATE]

Note: This will is governed by South Dakota Codified Laws Title 29A, Chapter 29A-2. A South Dakota will not made as a holographic will must be signed by two witnesses in the testator's conscious presence (SDCL 29A-2-502); South Dakota law does not disqualify an interested witness and does not void a gift to a witness-beneficiary (SDCL 29A-2-505), but naming beneficiaries as witnesses is best avoided to prevent any later dispute over the will. Keep the signed original in a safe place and tell your personal representative where to find it. This is a South Dakota skeleton for a last will and testament, not a complete document. For the complete, customizable template, see the full Last Will and Testament template.

Once your Last Will and Testament is ready, you can check whether it needs to be notarized in South Dakota in about a minute, and notarize it online through DocDraft if it does.

South Dakota Requirements for Last Will and Testament

Two Witnesses Required for a Non-Holographic Will

Unless it qualifies as a holographic will, a South Dakota will must be signed by the testator and then signed by two or more individuals who witnessed the signing or the testator's acknowledgment of the signature, all in the testator's conscious presence (SDCL 29A-2-502).

Interested Witnesses Are Permitted

South Dakota has no purging statute for interested witnesses. A witness who is also a beneficiary does not invalidate the will or that person's gift under SDCL 29A-2-505, though choosing disinterested witnesses is still the safer practice to avoid a later challenge.

Self-Proving Affidavit Available

The testator and witnesses may sign a self-proving affidavit before a notary public or other officer authorized to administer oaths, either at the time the will is signed or at any later time, so the will can be admitted to probate without locating the witnesses (SDCL 29A-2-504).

Holographic Wills Are Recognized

A South Dakota will is valid as a holographic will, whether or not it is witnessed, if the signature and the material portions of the document are in the testator's own handwriting (SDCL 29A-2-502(a)).

No Notary Needed for the Will Itself

A standard South Dakota will is made valid by two witnesses, not a notary (SDCL 29A-2-502). A notary is required only if the testator and witnesses choose to add the optional self-proving affidavit (SDCL 29A-2-504).

Minimum Age and Capacity to Make a Will

An individual eighteen years of age or older who is of sound mind may make a will in South Dakota (SDCL 29A-2-501).

Revocation by a Later Will or by Physical Act

A South Dakota will, or any part of it, can be revoked by executing a subsequent will that revokes it expressly or by inconsistency, or by a revocatory act, such as burning, tearing, canceling, obliterating, or destroying it, done with the intent to revoke by the testator or by another at the testator's direction and in the testator's conscious presence (SDCL 29A-2-507). Divorce or annulment also automatically revokes any gift or appointment made to a former spouse (SDCL 29A-2-804).

Name a Personal Representative (Executor)

South Dakota uses the term personal representative for the person who administers a probate estate. Naming a personal representative and a successor in the will lets that person carry out its terms and handle debts, expenses, and distributions.

Does your Last Will and Testament need to be notarized in South Dakota?

Whether a Last Will and Testament needs to be notarized depends on your state. Upload yours, pick your state, and get the current rule with the official source behind it, free and with no account. If yours does need a notary, online notarization is part of your DocDraft plan.

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Frequently Asked Questions

A South Dakota will that is not holographic needs two or more witnesses. They must sign in the testator's conscious presence after watching the testator sign or acknowledge the signature (SDCL 29A-2-502). South Dakota does not disqualify an interested witness, so a witness who is also a beneficiary does not void the will (SDCL 29A-2-505), but using two disinterested witnesses is still the safer, dispute-resistant practice.

No. A standard South Dakota will is made valid by two witnesses, not a notary (SDCL 29A-2-502). A notary is used only if you choose to add the optional self-proving affidavit, a separate sworn statement signed by the testator and witnesses before a notary that speeds up probate (SDCL 29A-2-504).

Yes. South Dakota recognizes a holographic will, one that is valid whether or not it is witnessed, as long as the signature and the material portions of the document are in the testator's own handwriting (SDCL 29A-2-502(a)). Intent can also be shown by extrinsic evidence, including portions not in the testator's handwriting.

Be at least 18 and of sound mind (SDCL 29A-2-501), put your wishes in writing, name a personal representative (executor) and a guardian for minor children if needed, and sign the document. Unless it qualifies as a holographic will, sign it in the conscious presence of two witnesses who then sign in your conscious presence (SDCL 29A-2-502).

A valid South Dakota will requires a testator who is 18 or older and of sound mind (SDCL 29A-2-501), a signature by the testator (or by another at the testator's direction and in the testator's presence), and either two qualifying witnesses or, for a holographic will, a signature and material portions entirely in the testator's own handwriting (SDCL 29A-2-502).

A self-proving affidavit is a sworn statement, signed by the testator and the witnesses in front of a notary public or other officer authorized to administer oaths, that is attached to the will (SDCL 29A-2-504). It lets a South Dakota probate court accept the will without calling the witnesses to testify that they saw it signed, and it can be added when the will is signed or at any later time.

You must be at least 18 years old and of sound mind to make a valid will in South Dakota (SDCL 29A-2-501).

You can revoke a South Dakota will, or part of it, by executing a later will that revokes it expressly or by inconsistency, or by a revocatory act such as burning, tearing, canceling, obliterating, or destroying it with the intent to revoke, done by you or by someone else in your conscious presence and at your direction (SDCL 29A-2-507). Divorce or annulment also automatically revokes any gift or appointment the will made to a former spouse (SDCL 29A-2-804).