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South Dakota Probate Types: Informal, Formal and Affidavit

South Dakota sorts its routes by whether anyone disputes the estate and by what the estate holds. Two affidavits skip court entirely, and there is no summary administration in between.

Compare eligibility, timing, court involvement, and local verification points

How to Compare South Dakota Probate Types

One court hears every South Dakota estate. The circuit court has original jurisdiction in all matters of probate and settlement of estates of deceased persons (SDCL § 16-6-9(5)), and the probate code defines the court as the circuit court (SDCL § 29A-1-201(8)). Informal applications go to the clerk of courts, an office of the Unified Judicial System, and a circuit judge hears formal proceedings. Venue is the county where the decedent was domiciled at death, or, for a decedent domiciled elsewhere, any county where the decedent's property was located (SDCL § 29A-3-201).

The five routes fall into two groups. Three are court administrations: informal probate and appointment before the clerk with no hearing, formal testacy and appointment proceedings decided after notice and a hearing, and supervised administration under the court's continuing authority. Two never reach a court: the § 29A-3-1201 affidavit for personal property when the whole estate, net of liens, is $100,000 or less, and the § 29A-3-1203 affidavit for South Dakota land worth $50,000 or less, recorded with the register of deeds. The uniform act's summary administrative procedure was not enacted.

Cost does not scale with the estate. Opening a formal or informal estate costs $122 in every county, the total on the Unified Judicial System Schedule of Court Costs (effective July 1, 2026): $75 under SDCL § 16-2-29(1), a $40 court automation surcharge under § 16-2-39 and a $7 county law library fee under § 14-6-1. South Dakota has no probate tax and no estate or inheritance tax.

Simplified Path vs Formal Path at a Glance

Who decides

Tie

Simplified Path: The clerk of courts, on an application with no hearing

Formal Path: A circuit judge, on a petition, after notice and a hearing

Cost to open

Tie

Simplified Path: $122 in every county

Formal Path: $122 in every county

Earliest start

Simplified Path

Simplified Path: 120 hours after death to probate a will or appoint (§§ 29A-3-302 and 29A-3-307)

Formal Path: After notice and a hearing date, which takes longer

Notice before acting

Formal Path

Simplified Path: Only to people who demanded notice and, for appointment, anyone with an equal or prior right

Formal Path: To all interested persons before the hearing

Creditor window

Tie

Simplified Path: Four months from first publication if the personal representative publishes; publication is optional

Formal Path: The same four months; § 29A-3-801 does not vary with the route

Earliest closing

Tie

Simplified Path: Four months after appointment by sworn statement (§ 29A-3-1003)

Formal Path: The same floor unless the estate is supervised, which closes only by court order

Best fit

Tie

Simplified Path: An agreed family, a will nobody challenges, and one obvious person to appoint

Formal Path: A contested will, competing applicants, uncertain heirs, or a family that wants a court order

Main South Dakota Probate Options

Informal Probate and Informal Appointment

SDCL §§ 29A-3-302 and 29A-3-307

An uncontested estate that needs letters, with an agreed personal representative and a will nobody is challenging

Threshold: No dollar threshold. The ordinary route for an uncontested South Dakota estate.

Filing Fee: $122, the same in all 66 counties

Timeline: Commonly 6 to 12 months as a planning estimate. The floor is statutory: the closing statement cannot be filed earlier than four months after appointment (§ 29A-3-1003(a)), and a published creditor notice runs four months from first publication

Real Estate: Yes

Attorney: No statutory requirement

Formal Testacy and Appointment Proceedings

SDCL § 29A-3-401

A contested will, competing applicants for appointment, or uncertain heirs

Threshold: No dollar threshold. Used where the will is disputed, heirs are uncertain, or someone wants a court order.

Filing Fee: $122, the same court costs as informal probate

Timeline: 9 to 18 months as a planning estimate for a contested or court-supervised matter

Real Estate: Yes

Attorney: No statutory requirement, and rare without one because the proceeding is litigation

Supervised Administration

SDCL § 29A-3-501

An estate where beneficiaries want the court overseeing each step until discharge

Threshold: No dollar threshold.

Filing Fee: $122 to open

Timeline: Longer than informal administration, because the court approves distribution

Real Estate: Yes

Attorney: No statutory requirement, though counsel is common because the court approves each step

Small Estate Affidavit (Personal Property)

SDCL § 29A-3-1201

An estate of accounts, vehicles and belongings, net of liens, of $100,000 or less

Threshold: $100,000 or less, measured as the value of the entire estate, wherever located, less liens and encumbrances. Real property counts toward it, though this affidavit collects only personal property.

Filing Fee: $0. It is never filed. Budget for a notary and certified death certificates at $15 each

Timeline: Usable 30 days after the death; commonly 1 to 2 months to collect

Real Estate: No

Attorney: No

Real-Property Affidavit

SDCL § 29A-3-1203

A house or parcel of modest assessed value that would otherwise be the only reason to open a probate

Threshold: The decedent's interest in all South Dakota real property is worth $50,000 or less: assessment-roll value for the year of death for non-agricultural land, fair market value at death for agricultural land. The rest of the estate is not capped.

Filing Fee: $30 recording fee for the first 50 pages (SDCL § 7-9-15(1)); no court fee and no transfer fee

Timeline: Usable 60 days after the death; commonly 2 to 3 months

Real Estate: Yes

Attorney: No statutory requirement

* South Dakota court costs are set by statute and published in one statewide schedule, so all 66 counties charge the same amounts. The $122 to open an estate, formal or informal, is the Probate / Estate row of the Unified Judicial System Schedule of Court Costs (effective July 1, 2026): $75 under SDCL § 16-2-29(1), the $40 court automation surcharge under § 16-2-39, and the $7 county law library fee under § 14-6-1. The $7 is collected where the circuit's presiding judge has filed an order under § 14-6-1; the statewide schedule prints it for every probate. Special administration is $72. Neither small-estate affidavit carries a court fee, because neither is filed with the court.

Unfamiliar terms in the comparison? The South Dakota probate glossary defines them in plain language.

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Frequently Asked Questions

What are the main South Dakota probate types?
Informal probate and appointment before the clerk of courts (SDCL §§ 29A-3-302 and 29A-3-307), formal testacy and appointment proceedings decided after notice (§ 29A-3-401), and supervised administration (§ 29A-3-501). Beside them sit two affidavits that never reach a court: § 29A-3-1201 for personal property when the whole estate, net of liens, is $100,000 or less, and § 29A-3-1203 for South Dakota land worth $50,000 or less.
Which court handles probate in South Dakota?
The circuit court. SDCL § 16-6-9(5) gives it original jurisdiction in all matters of probate and settlement of estates, and § 29A-1-201(8) defines the court as the circuit court. There is no separate probate court. Informal applications are handled by the clerk of courts, and a circuit judge hears formal proceedings. File in the county where the decedent was domiciled at death.
What is the difference between informal and formal probate in South Dakota?
Who decides and whether anyone gets notice first. Informal probate goes to the clerk of courts with no hearing, and notice of the application goes only to people who demanded notice and, for appointment, anyone with an equal or prior right to be appointed who has not waived it (§§ 29A-3-306 and 29A-3-310). Formal proceedings are litigation, decided after notice and a hearing. Both cost $122 to open, so the choice turns on whether the will or the heirs are in dispute, not on price.
How soon can a South Dakota probate start?
The clerk can informally probate a will and appoint a personal representative once 120 hours have passed since the death (§§ 29A-3-302 and 29A-3-307). For a nonresident decedent, appointment waits 30 days unless the domiciliary personal representative applies or the will directs that South Dakota law govern. The personal-property affidavit waits 30 days and the real-property affidavit 60 days.
Is publishing a notice to creditors required in South Dakota?
No. SDCL § 29A-3-801(a) says the personal representative may publish once a week for three successive weeks in a legal newspaper in the county, which bars claims not presented within four months after the first publication. Written notice to known or reasonably ascertainable creditors is required either way, and those creditors have the later of four months after the appointment or 60 days after the notice is mailed or delivered (§ 29A-3-801(b)). Every pre-death claim is barred three years after the death (§ 29A-3-803).
What does a South Dakota personal representative owe the Department of Social Services?
A notice. Within 14 days after appointment, the personal representative must give the Department of Social Services in Pierre written information about the appointment, including the decedent's Social Security number, and certify to the court that it was provided (SDCL § 29A-3-705(c)). The same 14 days applies to the information sent to the heirs and devisees.
How soon can a South Dakota estate close?
Four months after the original appointment at the earliest, by a verified closing statement under SDCL § 29A-3-1003 stating that the creditor-claim period has expired or known creditors are paid, the estate is fully administered, and a copy and a full accounting went to the distributees and known unpaid creditors. Those entitled to the accounting may waive it in writing. The appointment ends one year after the statement is filed if nothing is pending. A supervised estate closes only by court order.
Does a South Dakota personal representative have to file an inventory?
Prepare one, yes; file it, no. SDCL § 29A-3-706 requires an inventory within six months after appointment or nine months after the death, whichever is later, listing each item's fair market value at the date of death and any encumbrance. A copy goes to any interested person who asks, and the personal representative may file the original with the court.
Does a South Dakota personal representative need a bond?
Usually not. Since July 1, 2025, SDCL § 29A-3-603 says a bond is not required of a personal representative unless the court concludes that a bond is in the best interests of the estate. If bond is required and no amount is set, the personal representative files a sworn estimate of the personal estate plus a year's expected income and posts bond of at least that amount (§ 29A-3-604). The surety sets the premium.
What is the deadline to open probate in South Dakota?
Three years after the death, with exceptions. SDCL § 29A-3-108 bars informal and formal probate and appointment proceedings after that. An appointment or formal testacy proceeding may still be brought later if no proceedings concerning the estate took place in those three years, but the personal representative may then only confirm title in the rightful successors, and no claims other than administration expenses may be presented.
Does South Dakota have estate or inheritance tax?
No. SL 2014, ch 59 repealed the inheritance tax, the estate tax and the chapter that administered them. A $72 row for determination of inheritance tax survives on the court schedule, and § 16-2-29(3)(c) still prices those cases, but neither reflects a live tax.
How is a South Dakota personal representative paid?
Reasonable compensation, with a statutory commission schedule as a fallback. SDCL § 29A-3-719(a) entitles a personal representative to reasonable compensation judged on listed factors. When the will does not provide for compensation, or there is no will, § 29A-3-719(c) allows commissions on the personal property accounted for: 5% of the first $1,000, 4% of the next $4,000 and 2.5% above $5,000. The court may review the amount on petition (§ 29A-3-721).

Important: Picking the South Dakota county picks the courthouse and nothing else. Every county runs the same routes through the circuit court, venue follows the decedent's domicile under SDCL § 29A-3-201, and the court costs are statewide, so no county is cheaper. What is local is the clerk of courts who takes the filing, the register of deeds who records a deed or a real-property affidavit, and the legal newspaper that prints a notice to creditors if the personal representative chooses to publish one. The 66 counties are grouped into seven judicial circuits, which are administrative groupings, not venues.

Legal Authority: SDCL § 16-6-9(5) (circuit court jurisdiction), § 29A-1-201 (definitions), § 29A-3-201 (venue), §§ 29A-3-302, 29A-3-303 and 29A-3-307 (informal probate and appointment), § 29A-3-401 (formal testacy proceedings), § 29A-3-501 (supervised administration), § 29A-3-705 (information to heirs, devisees and the Department of Social Services), § 29A-3-706 (inventory), §§ 29A-3-801 and 29A-3-803 (creditor claims), § 29A-3-1003 (closing statement), § 29A-3-108 (three-year limit), § 29A-3-1201 (personal-property affidavit), § 29A-3-1203 (real-property affidavit), §§ 29A-3-603 and 29A-3-604 (bond), § 29A-3-719 (compensation), and §§ 16-2-29, 16-2-39 and 14-6-1 (court costs).. Last Verified: September 2026.

SourcesOfficial references used for this page

This content is for informational purposes only and is not legal advice or a substitute for attorney review. Laws and fees may change. Verify current requirements with your local court clerk before filing.

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