A will is a written document which states how and to whom you wish your property to go after your death. There are certain requirements which must be met for a will made in South Dakota to be considered legal.
The law requires that:
- The maker of the will (called the testator) be at least eighteen (18) years old and of sound mind.
- The will must be written. (An oral will may be considered legal only in certain unusual circumstances.)
- The will must be witnessed strictly in accordance with the law. (No witnesses are necessary if the will is dated and if the signature and instructions are in the handwriting of the testator. This is called a holographic will.)
Changing your will
A will is in effect until it is changed or revoked. You may do that as often as you wish. You should review your will from time to time. A review of your will every three (3) to five (5) years is recommended as 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.
A will you make when you are single is not revoked when you marry, but if you do not provide for your spouse, upon your death, your spouse receives 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 on a will may not be effective in order to change the will. A 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.
Although you may dispose of your property in almost any way you wish through your will, there are some restrictions. Married persons may not completely disinherit their surviving spouse, unless their spouse agrees.
Depending on the provisions in the decedent's will for the surviving spouse, the surviving spouse may exercise an option to take an elective share in lieu of the provision made in the will. The amount of the elective share is determined by the length of time the spouse and the decedent were married to each other.
Other provisions in the law provide for benefits to the surviving spouse and the decedent's children. These additional benefits can be explained by your lawyer.
If you have children, you are not required to leave them any portion of your estate. A common misconception is that a person must leave each child at least one dollar. This idea may have evolved from the fact that the failure of a will to make a provision for or "remember" a child results in a presumption that the person making the will merely forgot to include that child. To overcome this presumption, the person making the will in the years past would leave, "The sum of one dollar to my son, John." Today, an accepted provision is, "I have intentionally failed to provide for my son, John."
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 expense.
If there is no will
The property of a person who dies intestate (without a will) is distributed according to a formula set by state law. This is called intestate succession. First, all debts, costs of administration of the estate, and certain other expenses must be paid. If there are 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 the minor child has inherited.
A spouse is to receive the entire intestate estate unless the decedent was survived by descendants of a prior marriage or other relationship, in which event the spouse receives $100,000.00 plus half of the remaining estate.
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 is not a substitute for a will. Life insurance is a contract between the insured and the insurance company which provides for payment of insurance benefits to beneficiaries which the insured may name. Insurance policies which require payments to minor beneficiaries may require the guardian of those beneficiaries to establish a conservatorship. A conservatorship would require an annual accounting to the court. Any life insurance proceeds payable to a child over the age of eighteen (18) years will be paid directly to that child. Life insurance programs should be coordinated with the individual estate plan since a will does not override a specific beneficiary designation. It is to your benefit to have advice from your lawyer and life insurance counselor.
Drafting your will
Drafting a will involves decisions which require professional judgments. A lawyer can help you to 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 and joint 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
Joint tenancy should be distinguished from tenancy in common. Joint tenancy property, upon the death of one of the joint tenants, usually goes to the surviving joint tenant.
Tenancy in common property usually means that each tenant in common owns an undivided interest in the property. Upon the death of one of the tenants in common, that person's property will be distributed to the person named in the will or to the person's heirs under the intestate laws.
Many people have their property owned in joint tenancy. This arrangement is not likely to save either taxes or expenses in the long run. There are instances where joint tenancy is useful, but as in other estate plans, the use of joint tenancy should be coordinated with your general plan of distributing your assets to your heirs. Countless problems can be created by the indiscriminate use of joint tenancy ownership. Consultation with your attorney is recommended.
This information is based on South Dakota law and is designed to inform, not to advise. No person should ever interpret any law without the aid of an attorney who knows the facts and may be aware of any changes in the law.