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Attorney General Marty Jackley

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Probate is a legal proceeding that transfers your property following your death according to the terms of your will or in the absence of a will, to your heirs based on probate law. The South Dakota Uniform Probate Code was designed to protect the rights of heirs and to assure the orderly collection, preservation and transfer of property.

Having a will undoubtedly simplifies the distribution of your property. A will helps speed the probate process because your wishes are already outlined.

Testate probate proceedings are held for those who have a will upon their death.

For those who die without a will, probate law provides a means for distributing the property of the deceased, called an intestate probate proceeding.

The court will appoint a personal representative to administer the estate and distribute the property. This person is often a surviving spouse or another beneficiary.

Because there is no will, state law will be used to distribute property. Property will usually go to surviving spouses and other heirs.

With either type of probate proceedings, all creditors must be paid from the estate. The probate court also provides for the collection of appropriate state inheritance, federal estate and income taxes. A handful of other taxes must also be paid to the state before the estate can be closed. Administrative costs, court costs and attorney fees are also paid by the estate.

Probate law is complex. When used correctly, it will ensure that the property of the deceased is distributed quickly and fairly.

As with all estate planning, contact your lawyer for more details.