Do I need a Probate?

Often after a loved one passes away, the family is left to determine whether a probate is necessary. Probate, from the Latin term probare meaning “to test, prove” can be either informal or formal. A formal probate requires additional court intervention and is required if the decedent passed away more than three years before the filing of the probate. An informal probate in South Dakota is often handled by the clerk of courts rather than a judge. A probate can also be testate or intestate. Testate means that the decedent had a will at the time they passed away and intestate means that the person did not have a will at the time they passed away. A will typically tells who will handle a probate and where any property will go. For those who do not have a will, South Dakota state law directs the order of who will be in charge of the estate and where any estate property will go.

Even if your loved one had a Will, they may still need a probate in South Dakota. If a person owns real estate in their sole name and the decedent’s interest in that real estate is worth over $50,000, then a probate is necessary. If the value of the entire estate, wherever located, less liens and encumbrances, is at least $100,000, then a probate is necessary. If a probate is not necessary but the decedent still has property, then a small estate affidavit is necessary to transfer ownership of the property. Legacy Law Firm is happy to prepare a small estate affidavit if that is needed.