If you have not yet executed a Last Will and Testament, you likely have well-meaning friends and family who have urged you to do so. It helps though, to know why it is so important to have a Will in place. In essence, dying without a Will gives the State the right to decide what happens to your assets. To help you better understand the importance of executing a Will, the estate planning attorneys at German Law Group explain what happens when someone dies without a Last Will and Testament in place.
Understanding the Probate Process
When someone dies, the assets owned by the decedent must eventually be transferred to the new owners. To ensure that this transfer of ownership is accomplished properly and legally, the estate usually has to go through the legal process known as “probate.” If the decedent left behind a Last Will and Testament, the estate is referred to as a “testate” estate and the terms of the Will are used to determine what happens to the decedent’s assets. If the decedent failed to execute a Will prior to his/her death, the estate is referred to as an “intestate” estate. In that case, the intestate succession laws of the state of residency of the decedent will govern the disposition of the estate assets. South Dakota has adopted the Uniform Probate Code (UPC). Consequently, the following provisions apply to an intestate estate in South Dakota:
- Spouse’s share – governed by section 29A-2-102, the intestate share of a decedent’s surviving spouse is:
- The entire intestate estate if:
- No descendant of the decedent survives the decedent; or
- All of the decedent’s surviving descendants are also descendants of the surviving spouse;
- The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
- The entire intestate estate if:
- Shares of heirs other than surviving spouse – governed by section 29A-2-103, any part of the intestate estate not passing to the decedent’s surviving spouse under § 29A-2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
- To the decedent’s descendants by representation;
- If there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
- If there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
- If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or by representation to the descendants of the decedent’s paternal grandparents or either of them if both are deceased; and the other half passes to the decedent’s maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.
- Kindred of half-blood – governed by section 29A-2-107, Relatives of the half-blood inherit the same share they would inherit if they were of the whole blood.
- Afterborn heirs – governed by section 29A-2-108, An individual is treated as living at that time if the individual was conceived prior to a decedent’s death, born within ten months of a decedent’s death, and survived one hundred twenty hours or more after birth.
- Children born out of wedlock – governed by section 29A-2-114, for purposes of intestate succession by, from, or through a person, an individual born out of wedlock is the child of that individual’s birth parents. However, inheritance from or through the child by a birth parent or that birth parent’s kindred is precluded unless that birth parent has openly treated the child as kindred, and has not refused to support the child.
- Adoption — governed by section 29A-2-114, for purposes of intestate succession by, from, or through a person, an adopted individual is the child of that individual’s adopting parent or parents and not of that individual’s birth parents, except that:
- Adoption of a child by the spouse of a birth parent has no effect on (i) the relationship between the child and the birth parent whose spouse has adopted the child or (ii) the right of the child or a descendant of the child to inherit from or through the other birth parent; and
- Adoption of a child by a birth grandparent or a descendant of a birth grandparent of the child has no effect on the right of the child or a descendant of the child to inherit from or through either birth parent;
The identity of the mother of an individual born out of wedlock is established by the birth of the child. The identity of the father may be established by the subsequent marriage of the parents, by a written acknowledgment by the father during the child’s lifetime, by a judicial determination of paternity during the father’s lifetime, or by a presentation of clear and convincing proof in the proceeding to settle the father’s estate.
Contact Fargo Estate Planning Attorneys
Please join us for an upcoming FREE seminar. If you have additional questions about North Dakota’s intestate succession laws, or you wish to get started creating your Will, contact the estate planning lawyers at German Law Group by calling 701-738-0060 to schedule an appointment.