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Updated Will Guide: Essential Information for All Family Structures

Comprehensive guide to updating your will for blended families, same-sex couples, parents, and individuals with significant assets. Learn why an updated will is crucial for protecting your loved ones and assets.

Introduction

An updated will is one of the most important legal documents you can create to protect your family and assets. This legal instrument ensures your wishes are carried out after your passing, providing clear instructions about how your property should be distributed, who will care for minor children, and how your affairs should be managed. Without an updated will, state laws determine what happens to your assets and dependents, which may not align with your intentions. This guide explains the importance of keeping your will current, especially for blended families, same-sex couples, parents with minor children, and individuals with significant assets. Understanding the basics of an updated will can help you make informed decisions to protect your loved ones and provide peace of mind for your family's future.

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Key Things to Know

  1. 1

    Without an updated will, state intestacy laws determine how your assets are distributed, which may not align with your wishes for your family members.

  2. 2

    For blended families, an updated will is essential to ensure all children (biological and step-children) are provided for according to your intentions.

  3. 3

    Same-sex couples benefit from the legal protections an updated will provides, especially in regions where legal recognition may be evolving.

  4. 4

    Naming guardians for minor children is one of the most important functions of a will for parents.

  5. 5

    Your will should be reviewed and potentially updated after every major life event (marriage, divorce, birth of children, significant asset acquisition).

  6. 6

    For those with significant assets, an updated will should work in conjunction with trusts and other estate planning tools to minimize taxes and maximize asset protection.

  7. 7

    Digital assets, pets, and sentimental items should be specifically addressed in your updated will to avoid confusion or conflict.

  8. 8

    Working with an estate planning attorney familiar with your specific family structure is highly recommended to ensure your will accomplishes your goals.

Key decisions before you file

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

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South Dakota Requirements for Updated Will

  • Testamentary Capacity (SDCL § 29A-2-501)

    Under South Dakota law, the testator must be at least 18 years old and of sound mind when executing a will. Sound mind means understanding the nature of making a will, knowing the extent of one's property, and recognizing natural objects of one's bounty.

  • Will Execution Requirements (SDCL § 29A-2-502)

    A valid will in South Dakota must be in writing, signed by the testator (or by someone else in the testator's presence and at their direction), and witnessed by at least two competent individuals who also sign the will.

  • Self-Proved Will (SDCL § 29A-2-504)

    A will may be made self-proved at the time of execution or later by acknowledgment by the testator and affidavits of witnesses, each made before an officer authorized to administer oaths, attached or annexed to the will.

  • Holographic Wills (SDCL § 29A-2-502(b))

    South Dakota recognizes holographic wills, which must be written entirely in the testator's handwriting and signed by the testator. No witness signatures are required for holographic wills.

  • Revocation of Wills (SDCL § 29A-2-507)

    A will or any part thereof is revoked by a subsequent will that revokes the prior will or part expressly or by inconsistency, or by performing a revocatory act on the will with the intent to revoke it.

  • Spousal Elective Share (SDCL § 29A-2-202)

    A surviving spouse has the right to take an elective share of the decedent's estate, which varies based on the length of the marriage, from 3% to 50% of the augmented estate.

  • Pretermitted Children (SDCL § 29A-2-302)

    Children born or adopted after the execution of a will who are not provided for in the will may be entitled to a share of the estate as if the testator had died intestate.

  • Personal Representative Appointment (SDCL § 29A-3-203)

    The will should name a personal representative (executor) to administer the estate. If none is named, the court will appoint one according to statutory priority.

  • Guardian Designation for Minor Children (SDCL § 29A-5-202)

    A will may appoint a guardian for minor children. The court will consider this nomination but must ultimately act in the best interests of the child.

  • No-Contest Clause (SDCL § 29A-2-517)

    South Dakota recognizes no-contest clauses (in terrorem clauses) that can disinherit beneficiaries who challenge the will, though courts may not enforce them if probable cause exists for the contest.

  • Simultaneous Death Provision (SDCL § 29A-2-702)

    If the testator and a beneficiary die simultaneously or in circumstances where it's unclear who died first, South Dakota's Uniform Simultaneous Death Act applies unless the will contains specific provisions.

  • Estate Tax Considerations (26 U.S.C. § 2001)

    While South Dakota has no state estate tax, federal estate tax may apply to estates exceeding the federal exemption amount. The will should include provisions addressing potential federal estate tax liability.

  • Generation-Skipping Transfer Tax (26 U.S.C. § 2601)

    Federal law imposes a generation-skipping transfer tax on certain transfers to grandchildren or more remote descendants. The will should address this if applicable to the testator's estate plan.

  • Testamentary Trusts (SDCL § 55-1-1)

    South Dakota has favorable trust laws, allowing for the creation of testamentary trusts within a will. These trusts can provide for minor children, special needs beneficiaries, or tax planning.

  • Rule Against Perpetuities (SDCL § 43-5-8)

    South Dakota has abolished the rule against perpetuities, allowing for dynasty trusts that can continue for many generations. This should be considered when drafting provisions for long-term trusts in a will.

  • Digital Assets (SDCL § 29A-3-1401)

    South Dakota has adopted the Revised Uniform Fiduciary Access to Digital Assets Act, allowing testators to give executors authority to access and manage digital assets.

  • Ademption (SDCL § 29A-2-606)

    If specifically devised property is not in the testator's estate at death, the bequest fails (adeems) unless protected by anti-ademption statutes or the will provides otherwise.

  • Abatement (SDCL § 29A-3-902)

    When an estate has insufficient assets to pay all devises, South Dakota law establishes an order of abatement unless the will expressly provides otherwise.

  • Choice of Law Provisions (SDCL § 29A-4-202)

    For testators with property in multiple states, the will should include choice of law provisions to clarify which state's laws govern interpretation of the will.

  • HIPAA Authorization (45 C.F.R. § 164.502)

    Federal HIPAA laws protect medical privacy even after death. The will or accompanying documents should include authorization for personal representatives to access protected health information.

Frequently Asked Questions