To create a will in South Dakota, the person creating the will (known as the testator) must be able to:

• put their will in writing
• understand the meaning of the document
• be free of undue influence or duress, and
• sign it in front of two witnesses.

A will remains in full effect until a new will replaces it or it is revoked. Written amendments to the will in the form of codicils require the same signing and witness formalities as a will.

The state of South Dakota recognizes holographic wills in certain circumstances. A holographic will is one written in the testator’s handwriting but not signed by any witness. See our interactive map on holographic wills for more information. Oral wills are not recognized in South Dakota.

Limitations on Wills in South Dakota

In South Dakota, a surviving spouse has a right to either accept the gift under a will or choose to take his percentage of the spouse’s estate as defined by state law. A will cannot distribute property that is co-owned or has a designated beneficiary, such as a life insurance policy. Additionally, a will cannot force a beneficiary to commit an act that is against the law or public policy in order to inherit under the will.

The Probate Process in South Dakota

Probate is the court-supervised process in which a will’s assets are transferred to the beneficiaries. The executor named in the will starts the process by filing the will with the probate court. He then gathers the assets, pays any creditor claims or bills, and following court approval, distributes the assets according to the will’s instructions.

A beneficiary disputing the validity of the will may contest the will during probate of the estate. Generally, the beneficiary will allege that the will failed to comply with one or more of the legal requirements necessary to create a will.

If a person dies intestate (without a will), the court appoints an administrator to handle the estate. The decedent’s assets are then distributed according to the South Dakota statutory scheme for intestate distribution.

Advantages of a Will

One of the primary benefits of a will is that the testator maintains a degree of control over how his assets will be distributed following death and how his children (and their property) will be cared for. Without a will, the potential heirs of an estate will have to spend money and time to determine who will receive a share of the estate. In those cases, the estate will be distributed according to state intestacy laws and unintended beneficiaries, such as distant relative, may receive a share of the estate. If no relatives survive to take under intestacy law, the entire estate could potentially escheat to the state.