South Dakota Petition for Probate
South Dakota offers an informal application to the clerk of court or a formal petition to the court, with a general three-year limit and no authority until letters issue.
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Where are you in the probate process?
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Introduction
South Dakota follows the Uniform Probate Code's two tracks. An informal application for probate or appointment goes to the clerk of court, with no hearing. A formal petition goes to the circuit court and requires notice and a hearing. Both are filed in the county of the decedent's domicile (SDCL 29A-3-301, 29A-3-402). One proceeding may combine probate of the will with appointment of a personal representative (SDCL 29A-3-107). Nobody has authority over estate assets until the court appoints them and letters issue; being named executor in a will does not by itself give that authority. Probate or appointment proceedings generally may not be commenced more than three years after death, with exceptions (SDCL 29A-3-108). After the death, on request of an interested person, whoever has the will must deliver it with reasonable promptness to an appropriate court or to a person able to secure its probate (SDCL 29A-2-516). No bond is required unless the court concludes one is in the estate's best interests (SDCL 29A-3-603). Not every estate needs probate. Small estates may use an affidavit route, and non-probate assets pass outside the estate. A will contest or a dispute over who should serve is a separate proceeding. Attorney review is available.
Key Things to Know
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Filing: an application for informal probate or informal appointment goes to the clerk of court, and a petition for formal probate, formal testacy or appointment goes to the circuit court, in the county of the decedent's domicile (SDCL 29A-3-301(a), 29A-3-402(a)). No statewide form number is named on this page, so ask the clerk what the court requires; the court's form controls over any draft.
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No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period runs.
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Proceedings for informal or formal probate or appointment generally may not be commenced more than three years after the decedent's death, with exceptions (SDCL 29A-3-108). After the testator's death and on request of an interested person, the person holding the will must deliver it with reasonable promptness to an appropriate court or to a person able to secure its probate, with no day count stated; willful failure makes that person liable for damages (SDCL 29A-2-516).
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Priority to serve runs: the person named in a probated will, a surviving spouse who is a devisee, other devisees, the surviving spouse, other heirs, and then, 45 days after death, any other qualified person. A person under 18 or a bank or trust company not qualified to do trust business in South Dakota is not qualified (SDCL 29A-3-203). Whether a nonresident may serve is not covered here, so ask the clerk. The court decides and appointment is not guaranteed.
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Notice: an informal filing needs no notice to heirs beforehand except to those who filed a demand for notice and any existing personal representative (SDCL 29A-3-306(a)). Within 14 days after appointment the personal representative must give written information, with a copy of the will, to heirs and devisees, and notify the Department of Social Services (SDCL 29A-3-705). A formal petition requires notice of hearing mailed or delivered at least 14 days before the hearing (SDCL 29A-3-403, 29A-1-401).
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Creditors: a personal representative may publish notice once a week for three successive weeks in a legal newspaper and must give written notice to known or reasonably ascertainable creditors (SDCL 29A-3-801). Claims are barred four months after first publication; after written notice, four months after appointment or sixty days after the notice is mailed or delivered, whichever is later. All claims are barred three years after death (SDCL 29A-3-803(a)).
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Bond is not required unless the court concludes it is in the best interests of the estate (SDCL 29A-3-603). Probate administration may be informal and unsupervised or supervised by the court. Not every estate needs probate: South Dakota offers affidavit routes for personal property and real property, covered on DocDraft's small-estate-affidavit page.
Key decisions before you file
Before you file a Petition for Probate in South Dakota, a few decisions shape the document: which option to choose and what each one means. The Petition for Probate guide walks through them.
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South Dakota Requirements for Petition for Probate
Informal Application or Formal Petition
An informal application for probate or appointment goes to the clerk of court, and a petition for formal probate or appointment goes to the court (SDCL 29A-3-301(a), 29A-3-402(a)). Probate and appointment may be combined (SDCL 29A-3-107).
Court in the County of Domicile
The filing goes to the circuit court in the county of the decedent's domicile (SDCL 29A-3-301, 29A-3-402).
Three-Year Limit
Informal or formal probate or appointment proceedings generally may not be commenced more than three years after death, with exceptions (SDCL 29A-3-108).
Will Delivery Duty
After the testator's death and on request of an interested person, a person with custody of the will must deliver it with reasonable promptness to an appropriate court or to a person able to secure its probate; willful failure makes the custodian liable for damages (SDCL 29A-2-516).
Order of Priority for Appointment
Priority runs to the person under a probated will, a surviving spouse who is a devisee, other devisees, the surviving spouse, other heirs, then after 45 days any other qualified person (SDCL 29A-3-203).
Information to Heirs Within 14 Days
After appointment the personal representative gives written information and a copy of the will to heirs and devisees within 14 days and notifies the Department of Social Services (SDCL 29A-3-705).
Creditor Notice and Claims Period
Published notice bars claims four months after first publication. Written notice bars claims four months after appointment or sixty days after the notice is mailed or delivered, whichever is later. All claims are barred three years after death (SDCL 29A-3-801, 29A-3-803).
Bond Only if the Court Orders
A bond is not required unless the court concludes it is in the best interests of the estate (SDCL 29A-3-603).
Verified Application
An informal application is directed to the clerk of court and verified by the applicant to be accurate and complete to the best of the applicant's knowledge and belief (SDCL 29A-3-301(a)).