When it comes to writing a will, it’s all about knowing what your state requires for a will to be recognized as valid. While the process of writing a will is similar in all states, there are some differences. Each state, including South Dakota, has its own set of regulations for wills. If you don’t follow the legal conditions of your particular state, the court may reject your will; and if your will is not accepted by the probate court, it is treated as if you do not have a will at all. When you make a will online in South Dakota, be certain that you completely grasp the state’s requirements. Be sure to choose an online will that is customized for South Dakota.
Can I Make a Will Online in South Dakota?
Yes, you can make a will online in South Dakota. Any person who is at least 18 years old and who is of sound mind is allowed to make a will in the state. Use an online will service—we recommend USLegalWills to make a will online—to do so.
Here are the legal requirements for wills to be valid in South Dakota:
- The will must be in writing.
- The Testator (the person making the will) must sign or acknowledge the will in front of two witnesses, and
- The two witnesses must sign the will in front of the Testator.
After making an online will, you must print it out. While some states allow electronic wills, South Dakota does not currently allow them.
Any competent adult may act as a witness to your will, though it is recommended that both witnesses be “disinterested.” This means that the witness is not a beneficiary in the will. If either witness is an “interested” party, it does not invalidate your will in South Dakota—but it can create potential legal challenges.
Does South Dakota Require a Notarized Will?
No, you are not required to notarize your will for it to be valid in South Dakota. However—when a will is presented in the probate court, it must be validated. This means the court has to call the witnesses to testify to the validity of the will. If your witnesses cannot be located, this can complicate the validation process.
To avoid such hassles, South Dakota allows a will to be “self-proved.” To “self-prove” a will, it requires notarization. A “self-proved” will can be admitted to probate without requiring the witnesses to testify, which speeds up the process.
To “self-prove” a will in South Dakota, you and your witnesses sign a “self-proving affidavit” before a notary public. You attach the notarized affidavit to your will, making it “self-proved.”
An affidavit is a sworn statement, and when you make and sign an affidavit before a notary public, it is the same as if you are making the statement in court.
Can I Name an Executor in South Dakota?
In South Dakota, an executor can be named in an online will. The person who handles settling the estate, ensuring the will is followed, is known as the executor of the estate. It is a good idea to choose someone to act as the executor, otherwise the court will appoint someone (which can cause delays). You want to choose someone you know very well, someone you trust—be sure to discuss it with them before naming them in your will. You want to pick someone who is very organized and able to keep track of various details.
The only requirements for a person to qualify to serve as an executor in South Dakota are:
- The person must be at least 18 years old.
- The person must be of sound mind.
There are no other restrictions; you are free to name any competent adult as your executor in South Dakota. Some states, for instance, prohibit those with felonies on record to act as an executor; however, South Dakota does not prohibit this. The court will appoint your named executor unless someone challenges their ability to serve—the court will then hold a formal hearing.
To name an executor who lives out-of-state, there are some specific guidelines in South Dakota:
- Unlike many states, South Dakota does not impose special requirements on executors who live out of state. But that doesn’t mean it’s a good idea to appoint someone who lives far away. For practical reasons, it’s usually best to name an executor who lives near you. Your executor may have to handle day-to-day matters for weeks, months, or sometimes longer.
Do I Need an Attorney to Make a Will in South Dakota?
No, you do not need an attorney to make a will—and you do not need an attorney to make a will online in South Dakota either. Of course, if you have a large or complex estate, it is always best to consult an estate planning attorney. In most cases, when the estate is simple and the will is straightforward, online will making is a good option. Make sure you follow all the statutory requirements for your will to be recognized as valid; you also want to make sure you use an online will making service that offers state-specific templates.
What Types of Wills Are Valid in South Dakota?
Whether made online or otherwise, any will that satisfies the state-specific requirements is valid in South Dakota.
Can I Make a Holographic Will in South Dakota?
A handwritten last will and testament, signed only by the person making the will with no other witnesses, is known as a holographic will. South Dakota does recognize holographic wills if the will meets certain requirements, which are: the signature and the material portions of the document must be in the Testator’s handwriting.
However, holographic wills often face delays in probate court as they do not always include important provisions, and they must be proved authentic. This often means that the court will require witnesses to testify to your handwriting, and the court will scrutinize the will to make sure it has all the required language and provisions.
It is better to use an online will making service, using a template designed for South Dakota, to make your will. Otherwise, it is likely that if you attempt to make a holographic will, it will face challenges when presented to probate. Although the court might accept it, the process can be complicated and lengthy.
Can I Make a Nuncupative or Video Will in South Dakota?
Oral wills, sometimes left on video, are known as nuncupative wills. Nuncupative wills are typically considered to be an emergency of last resort type of will—sometimes known as “deathbed wills”—and the states that allow nuncupative wills only allow them under very specific circumstances.
South Dakota does not consider nuncupative wills to be legally binding. For a will to be considered valid in South Dakota, it must be in writing.
How Is a Living Will Different from an Online Will in South Dakota?
A living will, also known as an advance directive, is a legal document that provides instructions on medical decisions and end-of-life care; a last will and testament, on the other hand, contains matters pertaining to a person’s estate and instructions for after death. A living will and a last will and testament are two distinct legal documents with two distinct purposes. Any directions regarding medical care left in a last will and testament are not effective. Furthermore, because wills are often not read until after a person’s death and funeral, your family would likely be unaware of any of your preferences about medical decisions/end-of-life care. Living wills and last will and testaments are both legally binding, but they require different conditions to be valid and are two separate documents. For more information on living wills in South Dakota, you can go here.
In South Dakota, these are the requirements for a living will.
- The declarant must be 18 years of age or older.
- It must be signed by the declarant, and
- It must be signed by two adult witnesses, or
- It must be signed in front of a notary public.
A living will is voided temporarily during pregnancy, unless a doctor has a reasonable degree of medical certainty that a live birth is unlikely.
Why Do I Need to Make a Will Online in South Dakota?
Each state has its own laws regarding what happens to someone’s estate if they die without a will. These are known as intestacy laws. The state of South Dakota will appoint a guardian for any minor children as well as an executor for your estate, after which your estate will be split among remaining family members in accordance with the state’s intestacy distribution laws. This can become a lengthy and drawn-out procedure, with property being kept in probate for months or even years at a time.
If you have minor children, you should make a will in order to name guardians for them and prepare for their future in the event that anything happens to you. If you own property and wish to divide it in a certain way, you must prepare a will; otherwise, your estate will be distributed according to intestacy laws. If you make a will online in South Dakota, you can leave provisions to friends, distant family, or organizations.
What Can I Include in an Online Will in South Dakota?
In South Dakota, you can include the following in any will, whether made online or otherwise:
- Your estate’s executor.
- A guardian for minor children.
- A trustworthy guardian to oversee property left to minor children.
- A person to care for any pets.
- The distribution of property in a certain manner.
- Gifts for family members, friends, charities, or organizations.
- The distribution of personal or sentimental items.
- The distribution of family heirlooms.
What Should Not Be Included in a Will in South Dakota?
You should not include medical directives/end-of-life care or funeral instructions in your will. Any medical directive or end-of-life care stipulation left in a will is not legally binding, therefore ineffective. And because a will is generally not consulted until after the funeral, any directions for the arrangements will likely not be known until after.
To designate end-of-life care and other medical directives, create a living will.
To leave your funeral directions, you can just talk to a family member about your desires. If you wish, you can make a separate document describing your desires—which might make the funeral planning easier for your family. Be sure to give copies of this document to the executor of your estate or other trusted people.
Can I Change or Revoke an Online Will Made in South Dakota?
A will is a legally binding document, whether it is made online or not. However, as long as the Testator is living, the will can be changed or revoked.
In South Dakota, here are ways to change or revoke a will:
- The Testator can perform a physical revocatory act that destroys the will. A revocatory act can be anything that physically destroys the will with the intent of revoking it.
- The Testator can order someone else to perform a revocatory act destroying the will in front of them.
- The Testator can revoke a will by making a new will that explicitly states it revokes the prior will or implicitly by containing contradictory terms to the old will.
After any change in circumstance, you want to revisit your will. It is especially important to revisit your will after any big life event, such as marriage, divorce, birth of a child, adoption, or acquisition of significant assets which change the distribution of property, or relocation to another state or country.
If you need to make major changes to the will, it is best to revoke the will and make a new one. If you only need to make minor changes to a will, add an amendment called a codicil. A codicil must be finalized in the same way that the original will is finalized.
How Do I Finalize an Online Will in South Dakota?
After you make a will online in South Dakota, you need to print it out. To finalize your will, take these steps:
- Sign (or acknowledge) your will in front of two witnesses, and
- Have your witnesses sign your will in front of you.
To “self-prove” a will in South Dakota, you and your witnesses sign a “self-proving affidavit” before a notary public. Attach the notarized affidavit to your will.
Be sure to consider these special considerations in South Dakota:
- You cannot completely disinherit a surviving spouse unless you have a valid pre- or post-nuptial agreement.
- Divorce automatically revokes language benefiting your former spouse, including if they are your named executor; you should still revisit/update your will after divorce.
- Surviving spouses and children may be entitled to portions of your estate in addition to any bequeathed provisions.
USLegalWills is our recommendation for an online last will and testament. Their pricing is fair and the process of making an online will is easy. You can also create a Living Will. USLegalWills offers a free service to document funeral wishes and save final messages for loved ones.