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South Dakota Probate Guide
Pillar GuideSouth Dakota20 min read

South Dakota Probate Guide

How South Dakota probate works: the circuit court, the 120-hour wait, the $122 fee, two small-estate affidavits and the 3-year limit.

By Settled Editorial

Not sure if you need probate?

Many estates can avoid probate entirely. Assets with beneficiary designations, joint accounts, and trust assets may pass automatically without court involvement.

South Dakota probate is the court process that proves a will, appoints a personal representative, settles the decedent's debts, and passes what remains to the heirs or devisees. The state's version of the Uniform Probate Code is Title 29A, and SDCL 29A-1-101 says it "shall be known and may be cited as the South Dakota Uniform Probate Code." Probate is required whenever a will has to prove who owns property: SDCL 29A-3-102 says a will takes effect to transfer property only after the clerk informally probates it or the court adjudicates it, with one exception, the small estate affidavit covered below.

Here is the part most pages get wrong. They tell you to "file with the county probate court." South Dakota has no court by that name. SDCL 29A-1-201(8) says "'Court' means the circuit court," and SDCL 16-6-9(5) gives the circuit court original jurisdiction "In all matters of probate, guardianship, conservatorship, and settlement of estates of deceased persons." The office that takes your papers is the Clerk of Courts, which in South Dakota belongs to the state's Unified Judicial System, not to county government.

This guide walks the process in order: where to file, the three tracks, who serves, the two small-estate affidavits, the clocks, the fee, bond and pay, and the closing.

Where You File

SDCL 29A-3-201(a) puts the first proceeding in the county where the decedent was domiciled at death. If the decedent lived in another state, venue lies in any South Dakota county where the decedent's property was located at death. Every later filing in the estate stays with that court unless it transfers the case. An out-of-state decedent who owned South Dakota land raises its own set of questions, and the South Dakota ancillary probate guide answers them.

Sixty-three of the 66 counties have a Clerk of Courts office in their own courthouse. Three do not, according to the Unified Judicial System's court finder:

  • Oglala Lakota County files with the Fall River County Clerk of Court, 906 N River St, Hot Springs.
  • Todd County files with the clerk at 200 E Third Street, Winner, the Tripp County courthouse.
  • Buffalo County files with the Brule County Clerk of Court, 300 South Courtland Street, Chamberlain.

The case still belongs to the decedent's own county. Only the counter you walk up to moves. Look up the address, hours and phone number for the circuit court clerk for your county before you go.

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South Dakota Runs Three Tracks

The Uniform Probate Code lets each estate choose how much court supervision it needs. South Dakota keeps all three levels.

Informal probate, handled by the clerk

This is the usual route for an uncontested estate, and it involves no hearing. SDCL 29A-3-301 says applications for informal probate or informal appointment "shall be directed to the clerk of court," verified by the applicant. The application states the applicant's interest, the decedent's birthdate, date of death and domicile, the names and addresses of the heirs and devisees, and that the three-year limit has not run. An application to probate a will also states that the original will is with the court or comes with the application.

The wait is short. SDCL 29A-3-302 has the clerk issue a written statement of informal probate "if at least one hundred twenty hours have elapsed since the decedent's death," and makes that statement "conclusive as to all persons until superseded by an order in a formal testacy proceeding." SDCL 29A-3-307(a) applies the same 120 hours to an informal appointment. For a nonresident decedent, the clerk delays the appointment until 30 days after the death, unless the applicant is the personal representative appointed at the decedent's domicile or the will directs that South Dakota law govern the estate.

Informal probate needs little notice at the start. SDCL 29A-3-306(a) requires notice only to anyone who filed a demand for notice under SDCL 29A-3-204 and to any personal representative still serving, then says "No other notice of informal probate is required." The family hears about the case afterward, within 14 days, as the next section explains.

An informal appointment carries full authority. Section 29A-3-307(b) says the status, powers and duties of the office "are fully established by informal appointment," and the appointment "may not be vacated retroactively." Under SDCL 29A-1-307, a judge may also perform any act the code assigns to the clerk.

Formal testacy, decided by a judge

SDCL 29A-3-401(a) defines a formal testacy proceeding as "a proceeding conducted before the court to establish a will or determine intestacy." An interested person starts one by petition, asking the court after notice and hearing to probate a will, set aside an informal probate, block a pending informal application, or declare that the decedent died without a will. While it is pending, the clerk may not act on any informal application for the same decedent, and a personal representative already serving must stop making distributions once notified.

Choose this track when someone contests the will, when the will has problems the clerk cannot resolve, or when you want a judge's order from the start.

Supervised administration, where the court stays involved

SDCL 29A-3-501 makes supervised administration "a single in rem proceeding" under the continuing authority of the court, lasting until an order approves distribution and discharges the personal representative. SDCL 29A-3-502(b) has the court order it when the will directs it (unless circumstances have changed), or otherwise only when the court finds it necessary. An estate in supervised administration cannot close by the sworn statement described at the end of this page.

Who Serves as Personal Representative

SDCL 29A-3-203(a) ranks the candidates in this order, on either track:

  1. The person the probated will names, or a person nominated under a power in the will.
  2. The surviving spouse, if the spouse is a devisee.
  3. Other devisees.
  4. The surviving spouse.
  5. Other heirs.
  6. Forty-five days after the death, any other qualified person.

Section 29A-3-203(f) disqualifies anyone under eighteen, anyone the court finds unsuitable in formal proceedings, and a bank or trust company not qualified to do trust business in South Dakota. A person with priority under (a)(2) to (a)(5) may nominate someone else to serve in their place. If a person with higher priority has not renounced in writing, 29A-3-203(e) requires a formal proceeding to appoint anyone else.

When there is no will, the heirs come from the intestacy statute, and the South Dakota intestate succession guide shows who inherits.

Two Small-Estate Affidavits, Two Numbers

South Dakota lets some estates skip the court entirely, through two separate affidavits with separate caps. It has no summary administration procedure. The South Dakota small estate affidavit guide walks through both, and here is the short version.

Personal property, up to $100,000. SDCL 29A-3-1201(a) requires anyone holding the decedent's money, tangible property or securities to hand them over, 30 days after the death, to a successor who presents an affidavit stating five things: "The value of the entire estate, wherever located, less liens and encumbrances, does not exceed $100,000"; 30 days have passed; no personal representative application or petition is pending or granted anywhere; the decedent owed nothing to the Department of Social Services "for medical assistance for nursing home or other medical institutional care"; and the successor is entitled to the property. Read the measure closely: it counts the whole estate, land included, even though this affidavit moves only personal property. Session Laws 2022, chapter 88 raised the figure from $50,000, effective July 1, 2022, so pages that still print $50,000 are out of date.

South Dakota real property, up to $50,000. SDCL 29A-3-1203 lets successors file an affidavit with the register of deeds in each county where the land lies, 60 days after the death, together with a certified death certificate. The decedent's interest in "all real property located in this state" must not exceed fifty thousand dollars. Non-agricultural land may be valued from the assessment rolls for the year of death, and agricultural land at fair market value on the date of death. Every claiming successor signs, and this affidavit repeats the same Department of Social Services statement.

That nursing-home debt line matters. A decedent who received Medicaid for nursing-home or other institutional care closes both affidavits, and the estate has to go through probate instead.

The Personal Representative's First Months

Three duties set the early pace, and South Dakota's clocks are shorter than the model act's.

Tell the family, and the state, within 14 days. SDCL 29A-3-705(a) requires every personal representative other than a special administrator to inform the heirs and devisees of the appointment "Not later than fourteen days after appointment," by delivery or ordinary mail. The notice gives your name and address, says whether bond was filed, names the court holding the file, and includes a copy of any probated will. Subsection (c) adds a South Dakota step: within the same 14 days, send written notice to the Department of Social Services in Pierre with the decedent's Social Security number, then certify to the court that you did so. Do not file that notice itself with the court.

Prepare the inventory. SDCL 29A-3-706 sets the deadline at "six months after appointment, or nine months after the decedent's death, whichever is later." List each item at its fair market value on the date of death with any encumbrance. Give a copy to any interested person who asks. Filing the original with the court is optional.

Deal with creditors. SDCL 29A-3-801(a) says a personal representative "may" publish a notice to creditors once a week for three successive weeks in a legal newspaper in the county, giving creditors four months from the first publication. Publication is optional. Written notice to known creditors is mandatory: subsection (b) says you "shall" mail or deliver notice to every creditor you know of or can reasonably find, and that creditor then has until the later of four months after your appointment or 60 days after the notice. SDCL 29A-3-803(a)(3) bars every pre-death claim, including the state's, three years after the death regardless of notice. The what the personal representative has to do guide covers the rest of the job.

The Clocks

TaskDeadlineClock starts atSource
Clerk may issue informal probate120 hoursDate of death29A-3-302
Clerk may make an informal appointment120 hoursDate of death29A-3-307(a)
Appointment delayed for a nonresident decedent30 daysDate of death29A-3-307(a)
Personal property affidavit may be presented30 daysDate of death29A-3-1201(a)
Any qualified person may seek appointment45 daysDate of death29A-3-203(a)(6)
Real property affidavit may be filed60 daysDate of death29A-3-1203
Notice to heirs, devisees and the Department of Social Services14 daysAppointment29A-3-705
Claims barred after published notice4 monthsFirst publication29A-3-801(a)
Claims barred after written noticeThe later of 4 months and 60 daysAppointment, and the mailing29A-3-801(b)
Earliest closing statement or petition for complete settlement4 monthsOriginal appointment29A-3-1003(a), 29A-3-1001(a)
Inventory preparedThe later of 6 months and 9 monthsAppointment, and the death29A-3-706
Contest of an informally probated willThe later of 12 months and 3 yearsThe informal probate, and the death29A-3-108(3)
Appointment terminates if nothing is pending1 yearFiling of the closing statement29A-3-1003(b)
Outer bar on pre-death claims3 yearsDate of death29A-3-803(a)(3)
Outer limit to open probate3 yearsDate of death29A-3-108

The South Dakota probate timeline guide turns that table into a working schedule.

What the Court Charges to Open an Estate

Opening an estate costs $122.00 statewide. The Unified Judicial System's "Guide to Filing Fees and Court Costs, Civil Filings Only," effective July 1, 2026, prints the "Probate / Estate" row as a $75.00 filing fee plus a $40.00 court automation surcharge plus a $7.00 law library fee. Each piece has its own statute:

PieceAmountStatute
Clerk's fee "For the probate of an estate"$75.00SDCL 16-2-29(1)
Court automation surcharge, "In each civil action, proceeding for judicial remedy, and probate proceeding"$40.00SDCL 16-2-39
County law library fee$7.00SDCL 14-6-1
Total to open an estate$122.00UJS schedule
Special administration$72.00UJS schedule; 16-2-29(3)(h)

One caveat on the last $7.00: 14-6-1 lets the clerk collect it only "Upon order of the presiding judge of the circuit court" filed in that county. The statewide schedule prints it for every probate, so plan on $122.00 and ask the clerk if your total differs. If you cannot afford the fee, SDCL 16-2-29.2 lets the court waive it on a motion backed by your affidavit, and SDCL 16-2-29.3 says the affidavit states your inability to pay.

If you plan to handle the filing without a lawyer, see filing South Dakota probate yourself. South Dakota's court system publishes no statewide set of probate petitions, and the South Dakota probate forms page explains where forms come from.

Bond and Compensation

Bond changed on July 1, 2025. SDCL 29A-3-603 now reads in full: "A bond is not required of a personal representative unless the court concludes that a bond is in the best interests of the estate." Session Laws 2025, chapter 90 (House Bill 1133, signed March 11, 2025) made that change. The earlier version listed specific ways around a bond, such as a will that waived it, a written waiver from every heir or devisee, or a qualified bank or trust company serving. Under SDCL 29A-3-604(c), any interested person may still petition the court to require bond or change its amount.

Pay has a statutory schedule, which many pages miss. SDCL 29A-3-719(c) applies "When compensation is not provided by will, or in an intestate proceeding." It allows commissions on the personal property you account for at 5 percent of the first $1,000, 4 percent of the amount from $1,000 to $5,000, and 2.5 percent above $5,000. For real property the court fixes "just and reasonable compensation," and real estate you sell during the probate counts as personal property. A will that sets pay controls instead.

Closing the Estate

SDCL 29A-3-1003(a) lets a personal representative close an unsupervised estate by filing a verified statement "no earlier than four months after the date of original appointment." The statement says the creditor period has expired or all known creditors were paid, that the estate is fully administered and distributed, and that a copy and a full accounting went to the heirs and devisees entitled to distribution and to any creditor whose claim is neither paid nor barred. Those people may waive the accounting in writing under 29A-3-1003(c). If no proceeding involving the personal representative is pending one year after the statement is filed, the appointment ends.

The closing statement that 29A-3-1003(a)(2) describes still asks you to confirm that inheritance and state estate taxes are paid. That line is a leftover: the Legislature repealed South Dakota's inheritance tax and estate tax chapters in Session Laws 2014, chapter 59.

When you want a court order instead of a sworn statement, SDCL 29A-3-1001(a) lets the personal representative petition for an order of complete settlement after four months from the original appointment, and the court grants that petition "as a matter of course." After notice and a hearing, the order discharges the personal representative.

The four-month floor sets the shortest possible South Dakota estate. Add the inventory, the time to sell property, and final tax returns, and most uncontested estates run longer. The code sets minimums and no typical length, so treat any duration you read elsewhere as an estimate.

Common Questions

Which court handles probate in South Dakota?

The circuit court of the county where the decedent lived. SDCL 29A-1-201(8) says "'Court' means the circuit court," and SDCL 16-6-9(5) gives it jurisdiction in all matters of probate. South Dakota has no separate probate court. You file with the Clerk of Courts, an office of the Unified Judicial System. Oglala Lakota County files in Hot Springs, Todd County in Winner, and Buffalo County in Chamberlain, because those three share a clerk's office with a neighboring county.

How much does it cost to open probate in South Dakota?

$122. The Unified Judicial System schedule effective July 1, 2026 lists "Probate / Estate" at a $75.00 filing fee, a $40.00 court automation surcharge and a $7.00 law library fee. The three parts come from SDCL 16-2-29(1), 16-2-39 and 14-6-1. A small estate affidavit under SDCL 29A-3-1201 goes to the holder of the property, so no court fee applies to it.

How soon after a death can you open probate in South Dakota?

After 120 hours. SDCL 29A-3-302 and 29A-3-307(a) set that wait for informal probate and informal appointment. For a nonresident decedent the clerk waits 30 days, unless the domiciliary personal representative applies or the will chooses South Dakota law.

Is there a deadline to open probate in South Dakota?

Three years after the death, under SDCL 29A-3-108, with five exceptions. A contest of an informally probated will may start within the later of twelve months from the informal probate or three years from the death.

Does a personal representative in South Dakota need a bond?

Usually not. Since July 1, 2025, SDCL 29A-3-603 requires bond only when "the court concludes that a bond is in the best interests of the estate." Session Laws 2025, chapter 90 made that change.

Start at the South Dakota probate hub for the state's other pages, then take your question to the guide that covers it.

Sources:

It is not legal advice.

Information current as of September 27, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in South Dakota can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.