Estate Planning 101

How Long Does Probate Take in South Dakota?

In this article, we'll cover the topics that impact the length of probate in South Dakota, including complexity and value of the estate, guardianship, trusts, not having a Will, and claims from creditors or family members.
October 6, 2023

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Estate planning is a complex process and understanding the probate procedure is a fundamental part of it. A question we often encounter is, "How long does probate take in South Dakota?" The answer isn't straightforward, as it depends on various factors such as the size of the estate, whether there is a will, and how efficiently the personal representative manages their duties. On average, probate in South Dakota can span anywhere from a few months to over a year. In this blog post, we will dive deeper into the factors that influence the length of the probate process in South Dakota and offer some practical tips to navigate it efficiently.

The more complex and valuable the estate, the longer things are likely to take:

As is the case in many states, in South Dakota, the complexity and value of an estate significantly affect the duration of the probate process. This is due to several factors, including the types and quantities of assets involved, the presence of creditors, tax obligations, and potential disputes among heirs.

Real estate often significantly impacts the timeline. For instance, if the deceased owned properties in multiple locations or states, each property may need to be probated separately in its respective jurisdiction. This can add considerable time and complexity to the process.

Moreover, certain types of property, such as businesses, can also complicate probate. If the deceased owned a business, additional steps may be necessary to value the business, transfer ownership, or even sell it. These steps can be time-consuming and may require specialized legal and financial expertise.

In South Dakota, the presence of non-probate assets can also affect the timeline. These are assets that transfer automatically upon death, outside of the probate process. Examples include life insurance policies, retirement accounts, and properties held in joint tenancy. While these assets can help expedite the process, identifying, locating, and managing them can still take time.

Another factor that can extend the probate timeline in South Dakota is the estate's value. If the estate is valued at more than $50,000, it will need to undergo formal probate proceedings, which can be a lengthier and more complex process than informal probate proceedings.

If the deceased died “intestate” (that means they didn’t have a will), probate usually takes a lot longer:

When a person dies without a valid will in place, they are said to have died "intestate". In such situations, their estate is divided according to South Dakota's intestacy laws, which can significantly lengthen the probate process.

The intestacy process in South Dakota follows a specific hierarchy of heirs. If the deceased is survived by a spouse and children, the estate is split among them. If there are no surviving children or spouse, the estate goes to the deceased's parents, and if they are not alive, it goes to siblings, and so on down the line of kinship.

The primary reason why intestacy can extend the probate process is the added complexity and potential for disputes. Without a will to provide clear direction, determining who gets what can become a contentious issue among surviving family members. This can lead to legal disputes, which can dramatically slow down the probate process and even result in court intervention.

Additionally, intestacy necessitates the appointment of an administrator for the estate, a role similar to the executor in a will. However, without a will to specify who should take on this role, the court will need to appoint someone. This can be a time-consuming process, particularly if multiple parties express interest in serving as the administrator or if there are disagreements about who is best suited for the role.

The administrator's responsibilities in an intestate estate are also typically more involved, which can add to the duration of probate. They must identify and inventory all of the deceased's assets, pay any debts and taxes, and distribute the remaining assets according to South Dakota's intestacy laws. This can be a complex and time-consuming process, particularly if the deceased's financial affairs were not well-organized.

If trusts are involved, the process is usually slower:

While trusts are often used as a tool to bypass the probate process, they can, paradoxically, slow down the process when they are part of an estate undergoing probate. This is largely due to the complexities involved in managing and distributing the assets held in the trust.

A trust is a legal arrangement where one person (the settlor) transfers assets to a trust, which is managed by another person (the trustee) for the benefit of a third person (the beneficiary). When the trustor passes away, the assets in the trust do not need to go through probate because they technically belong to the trust, not the deceased. However, this doesn't mean they're free from complications.

One of the main reasons why trusts can slow down the probate process is because they often require careful administration. The trustee must manage and distribute the trust's assets in accordance with the trustor's wishes, as outlined in the trust agreement. This can be a time-consuming and complex task, particularly if the trust contains a variety of assets or if the distribution instructions are intricate.

Furthermore, if the trust was not set up correctly or if there are questions about its validity, disputes can arise. These disputes can take a considerable amount of time to resolve, particularly if they end up in court. In extreme cases, the entire trust may even need to be probated, which can significantly extend the timeline.

Another factor that can complicate the probate process is the presence of multiple trusts. If the deceased had a number of different trusts, each one will need to be administered separately. This can be a lengthy and complex process, particularly if the trusts have different trustees, beneficiaries, or distribution instructions.

In South Dakota, as in other states, trusts can also impact the probate process due to tax issues. Trusts are subject to different tax rules than estates, and navigating these rules can be complex and time-consuming. Depending on the size and nature of the trust, it may be necessary to hire a tax professional to ensure everything is handled correctly.

Matters of guardianship will also slow down the probate process:

When a deceased individual leaves behind minor children, the probate process often becomes more complicated and lengthier. The reason for this is the need to determine and establish guardianship for the minors, a process that can significantly slow down probate proceedings.

In South Dakota, if a parent passes away and the other parent is already deceased or deemed unfit, a guardian needs to be appointed for any minor children. If the deceased left a will, they likely named a guardian for their children. However, even if a guardian is named in the will, the court still has the final say and must approve the choice of guardian, ensuring that it is in the best interest of the children.

If no guardian has been named in a will, or if the deceased died intestate, the court must select a suitable guardian. This can lead to potential disputes if multiple family members or friends wish to be appointed as the guardian. Such disputes can prolong the probate process as the court takes time to review each potential guardian's suitability.

Furthermore, the guardian may need to establish a guardianship estate if the minor inherits assets. The guardian must manage these assets on behalf of the minor until they reach the age of majority, and this process requires court oversight. Setting up a guardianship estate involves additional court proceedings, paperwork, and potentially, legal fees, all of which can delay the overall probate process.

In addition, it's worth noting that the court will likely require the guardian to post a bond. This is a type of insurance policy that protects the minor's inheritance in case the guardian mismanages or misappropriates the funds. Securing a bond can take time and may add another layer of complexity to the probate process.

Claims on the estate — either from creditors or other family members — can make things take a lot longer:

When an individual passes away, their estate may be subject to various claims, primarily from creditors and potential heirs. Both types of claims can significantly extend the duration of the probate process.

In South Dakota, the law requires that the personal representative of the estate notify all known creditors of the decedent's death. The creditors then have a specific period, generally four months from the date of the first publication of the notice to creditors, to file their claims against the estate for any outstanding debts.

Dealing with creditors can be a lengthy process. The personal representative must validate each claim before paying it. If the estate lacks sufficient funds to cover all debts, the personal representative must follow the state's order of priority to determine which debts to pay. This can be a complex and time-consuming process, particularly if the estate is insolvent or if there are disputes over the validity of certain claims.

Claims from family members or other potential heirs can also delay the probate process. Sometimes, distant relatives or unexpected heirs may emerge after a person's death, claiming a right to a portion of the estate. Alternatively, family members may dispute the validity of the will, alleging that it was forged, created under undue influence, or that the decedent was not of sound mind when they made it.

Resolving these disputes can take considerable time and may even involve court proceedings. If a will contest goes to trial, it can significantly extend the probate process, sometimes by several years. Even if the dispute is resolved out of court, the negotiations can still add months to the probate timeline.

The probate process — and how long each stage takes:

The probate process in South Dakota, like many legal procedures, is methodical and consists of several stages. To estimate how long probate might take, it's helpful to understand each of these steps and the typical time each one might require. However, these are just estimates, and the actual timeline can vary significantly based on the factors discussed above.

  1. Opening the Estate: The probate process begins with filing a petition to open the estate with the probate court in the county where the decedent lived. This step usually happens within a month or so after the individual's death. The court then appoints a personal representative, also known as an executor or administrator, who is responsible for managing the probate process.
  2. Notification of Heirs and Creditors: The personal representative is required to notify all known heirs and creditors of the decedent's death. This can take a few weeks to a few months, depending on the number of parties involved.
  3. Inventory and Appraisal: The personal representative must then inventory the decedent's assets and have them appraised to determine their value. This is a critical step as it impacts everything from tax obligations to the distribution of assets among heirs. Depending on the complexity and size of the estate, this process can take several months.
  4. Payment of Debts and Taxes: The personal representative uses the estate's funds to pay off any outstanding debts and taxes. In South Dakota, creditors have four months from the date of the first publication of the notice to creditors to file their claims against the estate. Resolving all claims can take several more months, depending on the number and complexity of the claims.
  5. Distribution of the Remaining Assets: After all debts and taxes have been paid, the personal representative can distribute the remaining assets to the heirs according to the decedent's will or South Dakota's intestacy laws if there is no will. This process can take a few weeks to a few months, depending on the number of heirs and the types of assets involved.
  6. Closing the Estate: Finally, the personal representative must prepare a final accounting, showing all payments and distributions made from the estate. Once the court approves this accounting, the estate can be officially closed. This final step can take a few weeks to a few months.

What to do if your executor isn’t moving probate along properly:

It's crucial for the probate process to progress efficiently, but there may be instances where you feel the executor of the estate is not fulfilling their duties appropriately. In such cases, it's important to know your rights and the steps you can take to ensure the estate is handled correctly.

In South Dakota, the executor, also known as the personal representative, has a fiduciary duty to manage the estate in the best interest of the beneficiaries. This includes completing the probate process in a timely and efficient manner. If you believe the executor is not meeting their obligations, you can raise your concerns with the probate court.

The first step is usually to have a discussion with the executor. They may be able to address your concerns directly or provide information that sheds light on the delays. However, if this doesn't resolve the issue, you can file a formal complaint with the probate court.

In your complaint, you'll need to provide evidence of the executor's shortcomings. This might include instances of negligence, mismanagement of estate assets, or failure to communicate important information about the probate process. The court will review your complaint and, if it finds merit, may take several actions.

The court could order the executor to provide a detailed report of their actions and the estate's status. Alternatively, the court might supervise the executor more closely to ensure they fulfill their duties. In extreme cases, where the executor has acted in bad faith or has seriously mismanaged the estate, the court may remove them and appoint a new executor.

It's important to remember that removing an executor is a serious action and typically a last resort. The court will generally only consider this if there's clear evidence of misconduct or inability to perform the required duties.