Wills and other estate planning tools give people the opportunity to decide, while they are living, who will get their property after they die. Nevertheless, some people pass away without a will. Whatever the reason, dying without a will, or dying “intestate,” means a probate judge will issue an order stating who will receive the deceased’s property based on South Dakota’s probate laws, not the preferences of the decedent.

Under South Dakota probate law, if the decedent dies childless and their spouse survives them, the spouse will receive the property that would have otherwise passed through a will. However, if the decedent has children, and also a child from a prior marriage or relationship, the surviving spouse receives the first $100,000 from the estate and one-half of the remaining balance. The rest of the estate is divided equally among the children of the decedent.

If there is no spouse but the decedent has surviving children, they inherit the entire estate, with each child collecting an equal share. In situations where someone dies with no surviving spouse or children, any living parent(s) would receive the entirety the estate property.

There are additional provisions in the probate laws that cover distributions to adopted children (they are treated the same as birth children) and stepchildren (whose status depends on if they were adopted), as well as children born outside the marriage (their rights depend on whether if the decedent acknowledged them or paternity was proven).

Not all property goes through the probate process after a loved one dies with or without a will. For instance, the proceeds of life insurance policies and 401(k) and other retirement accounts go directly to the named beneficiaries, and any property held in joint tenancy will go to the other surviving owner(s). Money or securities in transfer-on-death accounts will also go to the named beneficiary. If a trust was created by the deceased, the trustee of the living trust will distribute its assets to the named beneficiaries.

The estate planning and probate attorneys of Anker Law Group, P.C. in Rapid City, South Dakota have extensive experience helping clients draft solid plans that provide their loved ones with piece of mind. If you are looking to create a will, schedule a free initial consultation with a member of our team today. We can discuss what your estate planning options are. Call us at 605-519-5967 or contact us online.