Probate in South Dakota: small estates, no will, skipping court

Updated 2026-10-18

The short answer

In South Dakota, family can collect property by small estate affidavit 30 days after death if the whole estate is $100,000 or less. Land worth $50,000 or less can pass by recorded affidavit after 60 days. Neither works if a Medicaid nursing home debt is owed. South Dakota allows transfer-on-death deeds and has no estate or inheritance tax.

When someone dies in South Dakota, the family's first question is usually practical: do we have to go to court, and for how long?

Often the answer is no, or not for long. South Dakota has small estate affidavits, a simple informal probate, and a deed that passes a house without court. This page covers each one, plus who inherits with no will. It is part of our state guides to estate planning. If the word is new, start with what probate is.

Can my family use a small estate affidavit in South Dakota?

Yes, if the estate fits the limits. South Dakota has two affidavits (SDCL 29A-3-1201, SDCL 29A-3-1203).

Item	Personal property affidavit	Real property affidavit
What it covers	Bank accounts, vehicles and other personal property	South Dakota land
Value limit	The entire estate, wherever located, less liens, is $100,000 or less	All South Dakota real property is $50,000 or less
How land is valued	Not applicable	Assessed value in the year of death (fair market value for farmland)
Earliest you can use it	30 days after death	60 days after death
Where it goes	Given to whoever holds the property	Recorded with the register of deeds in each county, with a certified death certificate
Other conditions	No personal representative application pending or granted	Same, and all claiming successors sign

One condition applies to both. Neither affidavit can be used if the person who died owes the Department of Social Services for Medicaid nursing home or other institutional care. Our post on Medicaid estate recovery explains why states collect.

Who inherits if there's no will?

South Dakota's intestacy law decides. South Dakota is not a community property state (SDCL 29A-2-102).

If you are married, your spouse takes everything when either of these is true:

You have no children or other descendants, or
All your descendants are also your spouse's descendants.

Blended families are different. If you have a child who isn't your spouse's, your spouse takes the first $100,000 plus one-half of the rest. The remainder goes to your descendants.

Anything that doesn't pass to a spouse goes in this order (SDCL 29A-2-103):

Your descendants, by representation.
Your parents equally, or the surviving parent.
Your parents' descendants: brothers, sisters, nieces and nephews.
Half to your father's side and half to your mother's side: grandparents or their descendants.
The State of South Dakota.

An heir must outlive you by 120 hours to inherit. Half-siblings inherit the same as full siblings. Friends never appear on this list. If you want a friend, a church or a favorite neighbor to receive anything, it has to be in a will or trust. Our post on dying without a will covers what happens when the list runs short.

The good news is that South Dakota is forgiving about wills. A handwritten will is valid if the signature and the main parts are in your handwriting, witnessed or not (SDCL 29A-2-502).

Who serves as personal representative?

South Dakota calls the executor a "personal representative." If more than one person wants the job, the law sets the order (SDCL 29A-3-203):

The person named in the will.
A surviving spouse who inherits under the will.
Others who inherit under the will.
The surviving spouse.
Other heirs.
Forty-five days after death, any other qualified person.

People in groups 2 through 5 may nominate someone with the same priority. A personal representative is a fiduciary: legally required to act in the estate's interest and follow what the will says.

South Dakota has no residency requirement. The statute disqualifies only someone under 18, someone the court finds unsuitable, and a bank or trust company not qualified to do trust business in South Dakota. A daughter in Denver can serve. Since 2025, bond isn't required unless the court decides it is in the estate's best interest (SDCL 29A-3-603).

Informal or formal probate?

South Dakota follows the Uniform Probate Code. Informal probate is an application to the clerk of court, with no hearing (SDCL 29A-3-301). Formal probate goes before a judge, and a court can also supervise the whole estate if needed (SDCL 29A-3-501). An estate can be closed by the personal representative's sworn statement.

Probate generally can't start more than three years after death (SDCL 29A-3-108). Our post on the probate process walks through the steps.

How long do creditors have?

Four months, in most cases. Publishing a notice is optional in South Dakota. If the personal representative publishes once a week for three weeks, creditors have four months after the first publication (SDCL 29A-3-801).

Mailing is not optional. Known creditors must get notice and have the later of four months after the appointment or 60 days after the notice. Debts from before death are barred three years after death in any case (SDCL 29A-3-803).

How much is the personal representative paid?

"Reasonable compensation," judged by factors like time, difficulty, local customary fees and the estate's assets (SDCL 29A-3-719).

If the will doesn't set a fee, the personal representative may instead be allowed a commission on personal property: 5% of the first $1,000, 4% from $1,000 to $5,000, and 2.5% above $5,000. Real estate sold in probate counts as personal property for this. Our post on what an executor gets paid compares approaches.

Can my house skip probate?

Yes, with a transfer-on-death deed, allowed since 2014 (SDCL 29A-6-403). What to know:

It must be signed like any recordable deed, say the transfer happens at your death, and be recorded with the county register of deeds before you die.
The beneficiary doesn't have to be told or sign anything.
You can always revoke it, but only by a recorded document: a later transfer-on-death deed, a revocation, or a deed that expressly revokes it (SDCL 29A-6-408). A will can't undo it.

A living trust is the other common route, with one South Dakota trap. A trust is irrevocable unless its terms expressly reserve your power to revoke or change it (SDCL 55-3-6). Make sure a "revocable" trust says so in writing. Our posts on what a trustee does and how to avoid probate compare the options.

Will my heirs owe South Dakota estate or inheritance tax?

No. South Dakota has no estate tax, and its inheritance tax was repealed effective July 1, 2001 (South Dakota Department of Revenue).

Which path fits?

Situation	Likely path
Whole estate of $100,000 or less, no Medicaid nursing home debt	Personal property affidavit after 30 days
South Dakota land worth $50,000 or less	Real property affidavit recorded after 60 days
Home with a recorded transfer-on-death deed	Passes to the beneficiary, no probate
Home in a trust that reserves revocation	Trustee transfers it, no probate
Larger estate, family agrees	Informal probate with the clerk
Family disagrees about the will	Formal probate before a judge

Here is a typical case, a composite. Evelyn, 76, lived in Aberdeen and was widowed. Her house had a recorded transfer-on-death deed naming her nephew. Her savings were well under $100,000. Thirty days after she died, her nephew used the affidavit for the accounts, and the house passed under the deed.

Some people would rather not leave this to a nephew in another state. Trella Trust Company, through a Kinly membership, can be named as executor or trustee, first or as backup to someone you choose. If it steps in and settles the estate, that work is charged by the hour, and you see the rates before anything starts.

Before death, the papers that matter most are your powers of attorney. See our South Dakota financial power of attorney guide and South Dakota medical power of attorney guide.

Common questions

What is the small estate limit in South Dakota?

$100,000, less liens, for the entire estate, after 30 days. South Dakota land worth $50,000 or less can pass by a recorded affidavit after 60 days. Neither works if a Medicaid nursing home debt is owed to the state.

Does a surviving spouse inherit everything in South Dakota?

Only if there is no will and all the descendants are also the spouse's, or there are none. If the person who died had a child from another relationship, the spouse gets $100,000 plus half the rest.

Does South Dakota allow transfer-on-death deeds?

Yes, since 2014. The deed must be recorded with the county register of deeds before death, and only a recorded document can revoke it.

Is a living trust revocable in South Dakota?

Only if it says so. A South Dakota trust is irrevocable unless its terms expressly reserve the power to revoke or modify it.

Does South Dakota have an inheritance tax?

No. It was repealed effective July 1, 2001, and South Dakota has no estate tax.

Sources

This page is general information, not legal or financial advice. Laws vary by state.

Keep reading

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