In South Dakota, when someone passes away their estate must best settled. This means that the business that they left behind such as unpaid debt must be cared for and the property that they left behind must be passed on to others. Probate is the legal process that allows for the orderly settling of a decedent’s estate. Its purpose is to ensure that debts are paid and assets are distributed in a manner that is both consistent with the wishes of the decedent and consistent with the requirements of South Dakota law. The provisions related to probate and estate administration are found in SD Codified L § 29A-1-101 et seq. In South Dakota the Circuit Court has jurisdiction over estate matters and is considered the probate court. However, it is the personal representative who is in charge of the daily activities of the process. Personal presentative is another term for executor or administrator.
Executor Appointment in South Dakota
Before the personal representative has the legal authority to act on behalf of the estate, they must be appointed by the court and receive “letters. If the decedent nominated their personal representative in their will, the court will give that person first priority followed by the decedent’s surviving spouse, beneficiaries, any other qualified person. The person must be at least 18 years old and must be deemed suitable. SD Codified L § 29A-3-203. The personal representative may be required to post a bond.
Duties and Responsibilities in South Dakota
Once appointed, the personal representative must quickly move forward with the tasks necessary to settle the decedent’s estate.
- Notify beneficiaries and heirs. The personal representative is required to notify the decedent’s beneficiaries and heirs that they have been appointed. The notification must be sent within 14 days of appointment. SD Codified L § 29A-3-705
- Inventory the assets. The personal representative must identify the assets that are under their control. Within the later of 6 months of appointment or 9 months after the decedents’ death, the personal representativ. must prepare an inventory of estate property that includes the property’s fair market value as of the date of the decedent’s death. If any interested party requests a copy, the personal representative must provide one. SD Codified L § 29A-3-706
- Pay estate debts. One of the most important responsibilities of the personal representative is to make sure that debts owed by the decedent are paid. Before this can happen creditors must be made aware that a personal representative has been appointed. To do this the personal representative publishes a notice to creditors that gives creditors details as to how to file a claim and the deadline. Creditors have 4 months from the date of the first publication of the notice. After the deadline the claim would be time barred. SD Codified L § 29A-3-801. The personal representative is required to pay claims determined to be valid and filed on time, but only to the extent that there are assets available in the estate to do so.
- Asset distribution. Once debts and expenses are paid, the personal representative can seek permission from the court to distribute assets. If the decedent left a will, it will direct the personal representative as to who should get which assets. If the decedent did not leave a will, assets must be distributed based on intestate succession law. SD Codified L § 29A-3-1003. After assets have been distributed, the personal representative can file a request with the court to be discharged. SD Codified L § 29A-3-1003.
Executor Compensation in South Dakota
Under South Dakota law, personal representatives are entitled to receive “reasonable” compensation as determined by the court. The factors that the court considers when determining what is reasonable include:
- The time and labor that the personal representative put in
- The difficulty of the issues involved, and the skill needed to deal with them
- Whether the personal representative had to give up other employment opportunities
- The customary fee
- The value of the estate and the income earned by the estate while under the personal representative’s control
- Time constraints the personal representative faced
- The experience and ability of the personal representative
The court will also consider any direction in the decedent’s will regarding compensation for the personal representative. SD Codified L § 29A-3-719
In addition, the personal representative is entitled to receive reimbursement for expenses related to estate administration. SD Codified L § 29A-3-720