Regardless of whether a person dies with a valid will (testate) or without a valid will (intestate), their estate will pass through probate. Probate is the administrative process by which the deceased's property (both personal and land) are collected and distributed to the deceased's heirs and devisees.
Many states, including South Dakota, have adopted the Uniform Probate Code (UPC) in order to promote simplification, clarification, and efficiency in administering the estates of deceased parties. Under the UPC, any part of the deceased's estate that isn't effectively disposed of by will (or that passes outside of probate) is distributed according to the laws of intestate succession. The intestate succession laws that are applicable in South Dakota are outlined below.
| Code Section | South Dakota Code chapter 2: Intestate Succession |
| Share of the Surviving Spouse  | The deceased's surviving spouse receives the entire intestate estate if:
The deceased's surviving spouse receives the first $100,000, plus one-half of the remaining intestate estate if:
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| Share of Heirs Other than Surviving Spouse | Any part of the intestate estate that doesn't pass to the deceased's surviving spouse (or the entire estate if there isn't a surviving spouse) passes in the following order to the individuals below who survive the deceased:
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Property that Passes Outside of Probate
Not all property is subject to probate in South Dakota. Transferring property outside of the probate process can save time, money, and potentially years of legal hassle. There are several ways to pass property outside of probate including:
For more information about the types of property that pass outside of probate see FindLaw's section on Avoiding Probate.
The Estate Tax
As of January 1st, 2015, a handful of states still collect an estate tax, but South Dakota is not among them. However, the federal government does impose an estate tax on high value estates. In 2015, this tax is applicable to estates that are valued at $5,430,000 or more.
Additional Resources
State laws change frequently. For case specific information regarding South Dakota's probate and estate tax laws contact a local estate planning lawyer or tax attorney.
