South Dakota State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

Minimum age requirement to:

Holographic will recognized (Section 29A-2-502)

State taxes:

Estate tax: Equal to federal credit for state death taxes minus amount paid on state inheritance tax (Sections 10-40A-3 and 10-40-21
State gift tax:Inheritance tax: Up to 30% (Sections 10-40A-3 and 10-40-21)
- No state gift tax (Sections 10-40A-3 and 10-40-21
- Anatomical Gift Act (Section 34-26-20 to 34-26-47)
Inheritance tax: Up to 30% (Sections 10-40A-3 and 10-40-21)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 29A-2-101+)

No surviving spouse, but there are surviving children:
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - All of your estate will pass to your spouse
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - $100,000and one-half (1/2) of the estate to the surviving spouse, and
    - the other one-half (1/2), split equally among the surviving children or their children according to their per stirpes share
    - No children and both of your parents of deceased:
      - All of your estate will pass to your spouse
    - No children, but at least one of your parents survives you:
      - All of your estate will pass to your spouse
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents equally
No spouse, children, or parents:
- Siblings (brothers and sisters) equally or to their children according to their per stirpes share. If none, then to your next of kin

Who must be named as a beneficiary in your will:

Surviving spouse (Section 29A-2-202), andChildren, born or adopted (Section 29A-2-302)
- Surviving spouse must be given elective share of your “augmented” estate; “augmented” means:
  - If married for less than one year, then “augmented” can range from a “supplemental amount” ; “augmented usually includes both the property that passes under the will and any other property that passes by other “non-will” transfers, e.g. under a living trust or joint tenancy arrangement; see statute for more details on “augmented” (Section 29A-2-202)
  - If married for one-two years, then “augmented” can mean three percent of the estate; “augmented usually includes both the property that passes under the will and any other property that passes by other “non-will” transfers, e.g. under a living trust or joint tenancy arrangement; see statute for more details on “augmented” (Section 29A-2-202)
  - If married for over fifteen years, then “augmented” can mean up to 50 percent of your estate; “augmented usually includes both the property that passes under the will and any other property that passes by other “non-will” transfers, e.g. under a living trust or joint tenancy arrangement; see statute for more details on “augmented” (Section 29A-2-202)
Children, born or adopted (Section 29A-2-302)

Effects of changes in your marital status on your will:

You are divorced from the surviving spouse:
- Revokes will as to divorced former spouse (Section 29A-2-804)
You get married without changing your will that does not provide for your new spouse:
- Does not revoke the will, but spouse may still be entitled to shares under state intestate law (Section 29A-2-301)

Witnesses:

Minimum number of witnesses required: Two (Section 29A-2-502)
Are witnesses allowed to be beneficiaries?: Yes (Section 29A-2-505)
Requirements to be a witness, witnesses must be at least 18 years of age or a notary public, and no other restrictions apply

Property ownership (Sections 43-2-11 to 43-2-15):

Common law state
Bank account deposits held jointly are payable to any survivor named in the bank account
Tenancy by the entirety is not recognized in this state
Tenancy in common and joint tenancy are recognized

Other types of wills:

Self-proving wills recognized: Yes, recognized (Section 29A-2-504)
Living will: Living will Declaration (Section 34-12D-3) requires a determination by a physician that you are in a terminal condition and your death will result without using life-sustaining procedures
Power of Attorney for Health Care (Section 34-12C)
Durable Power of Attorney Act (Section 51A-11-4)