Your Will
A will is a written document that states how and to whom you want your assets to pass after your death. There are certain requirements which must be met for a will made in South Dakota to be legal.
What does the law require?
- The maker of the will (called the testator) be at least 18 years old and of sound mind.
- The will must be in writing and signed by the testator.
- The will must be witnessed by at least two people.
- There are exceptions to these formalities, for hand written wills called holographic wills. However, a formally prepared, signed, witnessed and notarized will generally is less subject to challenge than a holographic will.
Changing your will
Your will is in effect until it is changed or revoked. You may change or revoke your will as often as you wish, during your lifetime. You should review your will from time to time. A review of your will every 3 to 5 years is recommended. There may be changes in your family circumstances, in the amount and the kind of property you own, and in tax laws which could necessitate changes in your will.
What if I have a will before I get married?
A will you make when you are single is not revoked when you marry. If you do not provide for your spouse in your will, when you die, your spouse will receive what he or she would have received had you died without a will. All changes in your will, including any change in marital status, require a careful analysis and reconsideration of the provisions of your will to insure that it reflects your wishes.
Handwritten revisions
Handwritten revisions on a will may not be effective in order to change your will. Your will may be changed by re-writing it in its entirety or through a codicil. A codicil is a written amendment which can change a single provision or several provisions in the will, leaving all other provisions of the original will in effect.
Restrictions
Although you may dispose of your property in almost any way you wish through your will, there are some restrictions. If you are married, you can not completely disinherit your surviving spouse, unless your spouse agrees to be disinherited.
Depending on the provisions in your will for your surviving spouse, your surviving spouse may exercise an option to take an elective share instead of the provision you made in the will. The amount of the elective share is determined by South Dakota law.
Other provisions in the South Dakota law provide for benefits to your surviving spouse and your surviving children. Contact us and we can explain these additional provisions to you.
Expenses
If there is property to be administered or taxes to be paid, the fact that you have a will does not increase probate expense. A will can, in fact, actually reduce expenses by, among other things, waiving a bond requirement for the personal representative.
What happens if I die without a will?
If you die without a will, the law calls that dying intestate. When you die intestate, your property is distributed according to a formula set by South Dakota law. Distributing your assets when you don't have a will is called intestate succession. First, all debts, costs of administration of your estate, and certain other expenses must be paid. If you have minor children who receive property, it may be necessary for a conservator to be appointed by the court to manage and account to the court for the property which your minor child has inherited.
Your spouse will receive:
- Your entire intestate estate if:
- none of your descendants survive you; or
- all of your surviving descendants are also descendants of your surviving spouse.
- The first $100,000, plus one-half of any balance of your intestate estate, if one or more of your surviving descendants are not descendants of your surviving spouse.
If you elect not to have a will, you must consider that the legislature can change the laws of intestate succession. Therefore, you will not have certainty concerning the way in which your property will be distributed.
Life Insurance
Life insurance is not a substitute for a will. Life insurance is a contract between you and your insurance company which provides for payment of insurance benefits to beneficiaries that you name in your insurance policy. Insurance policies which require payments to your minor beneficiaries may require the guardian of those beneficiaries to establish a conservatorship. A conservatorship may require an annual accounting to the court. Any life insurance proceeds payable to your children over the age of eighteen (18) years will be paid directly to that child. Life insurance policies should be coordinated with your individual estate plan since a will does not override a specific beneficiary designation. Please contact us if you have any questions. We'll be happy to help.
Drafting your will
Drafting your will involves decisions that require professional judgments. A lawyer can help you avoid many pitfalls and advise you concerning your best course of action.
Designating beneficiaries on your insurance or annuity policies and IRA or 401(k) accounts, or naming joint tenants with right of survivorship on real estate titles or certificates of deposit, can create unwanted or unequal distributions. Since named beneficiaries, joint owners and payable on death (POD) owners take outside of the will, your will does not control these distributions.
Competent advice in drafting a will and planning an estate, with the assistance of your attorney, can, in many cases, reduce tax consequences and prevent unforeseen problems in the administration of your estate.
Ownership of Assets
In general, there are two basic ways to hold property.
- As joint tenants with right of survivorship, and
- as tenants in common
With joint tenancy property, when one of the joint tenants dies, there is a legal presumption that the property goes to the surviving joint tenant. With tenancy in common property, when one of the tenants in common dies, that person's property will be distributed to the person named in the will or to the person's heirs under the laws of intestate succession.
Many people hold their property in joint tenancy. There are instances where joint tenancy is useful, but as in other estate plans, the use of joint tenancy should be coordinated with your entire estate plan. Contact us to know which type of property ownership is right for your individual circumstance.