Explaining the basics of wills–what they are and where you should keep your will.
1. What is a Will?
A will is a written document which states how and to whom you wish your property to go after your death. There are certain requirements which must be met for a will made in South Dakota to be considered legal.
The law requires that:
The maker of the will (called the testator) be at least eighteen (18) years old and of sound mind
The will must be written (An oral will may be considered legal only in certain unusual circumstances)
The will must be witnessed strictly in accordance with the law. (No witnesses are necessary if the will is dated and if the signature and instructions are in the handwriting of the testator. This is called a “holographic” will.)
2. Do You Know Where Your Will Is?
In the legal world, photocopies and digital copies are very common and generally accepted as “legal” for most purposes. However, it is best to have the original estate planning documents. Upon death of an individual, in order to probate a will, the original document is presented to the Clerk for filing. If you do not have the original, a copy may be used but it will need to be “formally” probated, which is more expensive and more time-consuming. At first glance, this may seem like a harsh result, but when you consider the rationale, this law actually does make sense. There is a presumption that when the original will cannot be located that the will was intentionally destroyed for purposes of revoking the will. If numerous copies of a will were made, it can be difficult for the maker (testator) to destroy all copies that were made. If the original cannot be located, the personal representative must substantiate to the Court that he or she has used due diligence to locate the original and that to the best of the personal representative’s knowledge, the copy is the last signed document effectuating the transfer of assets that exists. The Court will consider the evidence to determine whether the will was simply lost or unintentionally destroyed. If you have the original that can be located when you pass away, the original will be filed with the Clerk and probated informally, which costs a lot less money and time.
So, do you know where your original will is? The best places to keep your will are in a fireproof safe or lockbox or in a bank safety deposit box. There are advantages and disadvantages to each of these options. The main thing is to make sure your personal representative knows where you are keeping the will or at least make it easy to find upon your death. It is always important to remember that if you use a safety deposit box, your personal representative may not be able to access it upon your death. If you place the personal representative’s name on the safety deposit box while you are alive, he or she will be able to have access to it. If you place your original estate planning documents in a safe, you do not need to provide the combination to the personal representative but, rather, simply let them know where the combination code is at so what when you pass away, they will be able to access it.
This may seem like basic record keeping to many people, but you would be surprised at how often family members know their loved one had a will, but they just cannot locate it. Please ensure that you have estate planning documents drafted, such as a will, durable power of attorney and perhaps a children’s trust or a grantor trust. Also ensure that your family members or friends know where the documents are located so that they may access them when the time arises for them to do so.
Disclaimer: This guide is not intended to, nor does it create an attorney-client relationship. This is a general overview for informational purposes only and is not intended to be fully inclusive, nor a comprehensive guide to the legal process. Each case has specific facts and circumstances that will dictate how it proceeds. Past results do not guarantee the same or similar results in the future. It is important that you speak to an attorney about your specific case.