CHAPTER 29A-3
PROBATE OF WILLS AND ADMINISTRATION
29A-3-101 Devolution of estate at death; restrictions.
29A-3-102 Necessity of order of probate for will.
29A-3-103 Necessity of appointment for administration.
29A-3-104 Claims against decedent--Necessity of administration.
29A-3-105 Proceedings affecting devolution and administration--Jurisdiction of subject matter.
29A-3-107 Scope of proceedings--Proceedings independent--Exception.
29A-3-108 Probate, testacy, and appointment proceedings--Ultimate time limit.
29A-3-109 Statutes of limitation on decedent's cause of action.
29A-3-201 Venue for first and subsequent estate proceedings--Location of property.
29A-3-202 Appointment or testacy proceedings--Conflicting claim of domicile in another state.
29A-3-203 Priority among persons seeking appointment as personal representative.
29A-3-204 Demand for notice of order or filing concerning decedent's estate.
29A-3-301 Informal probate or appointment proceedings--Application--Contents.
29A-3-302 Informal probate--Duty of clerk--Effect of informal probate.
29A-3-303 Informal probate--Proof and findings required.
29A-3-305 Informal probate--Clerk not satisfied.
29A-3-306 Informal probate--Notice requirements.
29A-3-307 Informal appointment proceedings--Delay in order--Duty of Clerk--Effect of appointment.
29A-3-308 Informal appointment proceedings--Proof and findings required.
29A-3-309 Informal appointment proceedings--Clerk not satisfied.
29A-3-310 Informal appointment proceedings--Notice requirements.
29A-3-311 Informal appointment unavailable in certain cases.
29A-3-401 Formal testacy proceedings--Nature--When commenced.
29A-3-402 Formal testacy or appointment proceedings--Petition; contents.
29A-3-403 Formal testacy proceedings--Notice of hearing on petition.
29A-3-404 Formal testacy proceedings--Written objections to probate.
29A-3-405 Formal testacy proceedings--Uncontested cases--Hearings and proof.
29A-3-406 Formal testacy proceedings--Contested cases--Testimony of attesting witnesses.
29A-3-407 Formal testacy proceedings--Burdens in contested cases.
29A-3-408 Formal testacy proceedings--Will construction--Effect of final order in another jurisdiction.
29A-3-409 Formal testacy proceedings--Order--Foreign will.
29A-3-410 Formal testacy proceedings--Probate of more than one instrument.
29A-3-411 Formal testacy proceedings--Partial intestacy.
29A-3-412 Formal testacy proceedings--Effect of order--Vacation.
29A-3-414 Formal proceedings concerning appointment of personal representative.
29A-3-501 Supervised administration--Nature of proceeding.
29A-3-502 Supervised administration--Petition--Order.
29A-3-503 Supervised administration--Effect on other proceedings.
29A-3-504 Supervised administration--Powers of personal representative.
29A-3-505 Supervised administration--Interim orders--Distribution and closing orders.
29A-3-601 Qualification.
29A-3-602 Acceptance of appointment--Consent to jurisdiction.
29A-3-603 Bond not required without court order, exceptions.
29A-3-604 Bond amount--Security--Procedure--Reduction.
29A-3-606 Terms and conditions of bonds.
29A-3-607 Order restraining personal representative.
29A-3-608 Termination of appointment--General.
29A-3-609 Termination of appointment--Death or disability.
29A-3-610 Termination of appointment--Voluntary.
29A-3-611 Termination of appointment by removal--Cause; procedure.
29A-3-612 Termination of appointment--Change of testacy status.
29A-3-613 Successor personal representative.
29A-3-614 Special administrator--Appointment.
29A-3-615 Special administrator--Who may be appointed.
29A-3-616 Special administrator--Appointed informally--Powers and duties.
29A-3-617 Special administrator--Formal proceedings--Power and duties.
29A-3-618 Termination of appointment--Special administrator.
29A-3-701 Time of accrual of duties and powers.
29A-3-702 Priority among different letters.
29A-3-703 General duties--Relation and liability to persons interested in estate--Standing to sue.
29A-3-704 Personal representative to proceed without court order--Exception.
29A-3-705 Duty of personal representative--Information to heirs and devisees.
29A-3-706 Duty of personal representative--Inventory and appraisement.
29A-3-707 Employment of appraisers.
29A-3-708 Duty of personal representative--Supplementary inventory.
29A-3-709 Duty of personal representative--Possession of estate.
29A-3-710 Power to avoid transfers.
29A-3-711 Powers of personal representatives--In general.
29A-3-712 Improper exercise of power--Breach of fiduciary duty.
29A-3-713 Sale, encumbrance, or transaction involving conflict of interest--Voidable--Exceptions.
29A-3-714 Persons dealing with personal representative--Protection.
29A-3-715 Transactions authorized for personal representatives--Exceptions.
29A-3-716 Powers and duties of successor personal representative.
29A-3-717 Co-representatives--When joint action required.
29A-3-718 Powers of surviving personal representative.
29A-3-719 Compensation of personal representative.
29A-3-720 Expenses in estate litigation.
29A-3-721 Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.
29A-3-801 Notice to creditors.
29A-3-802 Statutes of limitations.
29A-3-803 Limitations on presentation of claims.
29A-3-804 Manner of presentation of claims.
29A-3-805 Classification of claims.
29A-3-806 Allowance of claims.
29A-3-807 Payment of claims.
29A-3-808 Individual liability of personal representative.
29A-3-809 Secured claims.
29A-3-810 Claims not due and contingent or unliquidated claims.
29A-3-811 Counterclaims.
29A-3-812 Execution and levies prohibited.
29A-3-813 Compromise of claims.
29A-3-814 Encumbered assets.
29A-3-815 Administration in more than one state--Duty of personal representative.
29A-3-816 Final distribution to domiciliary representative.
29A-3-817 Department of Social Services' claim for indebtedness incurred by paying for medical assistance or care.
29A-3-901 Successors' rights if no administration.
29A-3-902 Abatement--Order and amount.
29A-3-903 Right of retainer.
29A-3-904 Interest on general pecuniary devise.
29A-3-905 Penalty clause for contest.
29A-3-906 Distribution in kind--Valuation--Method.
29A-3-907 Distribution in kind--Evidence.
29A-3-908 Distribution--Right or title of distributee.
29A-3-909 Improper distribution--Liability of distributee.
29A-3-910 Purchasers from distributees protected.
29A-3-911 Partition for purpose of distribution.
29A-3-912 Private agreements among successors to decedent binding on personal representative.
29A-3-914 Disposition of unclaimed assets.
29A-3-915 Distribution to person under disability.
29A-3-916 Apportionment of estate taxes.
29A-3-1001 Formal proceedings terminating administration--Testate or intestate--Order of general protection.
29A-3-1002 29A-3-1002. Reserved
29A-3-1003 Closing estates--By sworn statement of personal representative.
29A-3-1004 Liability of distributees to claimants.
29A-3-1005 Limitations on proceedings against personal representatives.
29A-3-1006 Limitations on actions and proceedings against distributees.
29A-3-1007 Certificate discharging liens securing fiduciary performance.
29A-3-1008 Subsequent administration.
29A-3-1101 Effect of approval of agreements involving trusts, inalienable interests, or interests of third persons.
29A-3-1102 Procedure for securing court approval of compromise.
29A-3-1201 Collection of personal property by affidavit.
29A-3-1202 Effect of affidavit.
29A-3-1203 Succession to real property by affidavit.
29A-3-A STATEMENT OF CLAIM
29A-3-101. Devolution of estate at death; restrictions.
The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to the person's property are subject to the restrictions and limitations contained in this code to facilitate the prompt settlement of estates. Upon the death of a person, that person's real and personal property devolves to the persons to whom it is devised by will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to the heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, rights of creditors, elective share of the surviving spouse, and administration.
Source: SL 1994, ch 232, § 3-101.
29A-3-102. Necessity of order of probate for will.
Except as provided in § 29A-3-1201, to be effective to prove the transfer of any property or to nominate a personal representative, a will shall be declared to be valid by an order of informal probate by the clerk of court, or an adjudication of probate by the court.
Source: SL 1994, ch 232, § 3-102; SL 1995, ch 167, § 98; SL 2002, ch 138, § 1.
29A-3-103. Necessity of appointment for administration.
Except as otherwise provided in chapter 29A-4, to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or clerk, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters.
Source: SL 1994, ch 232, § 3-103; SL 1995, ch 167, § 99.
29A-3-104. Claims against decedent--Necessity of administration.
No proceeding to enforce a claim against the estate of a decedent or the decedent's successors may be revived or commenced before the appointment of a personal representative. After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by this article. After distribution a creditor whose claim has not been barred may recover from the distributees as provided in § 29A-3-1004 or from a former personal representative individually liable as provided in § 29A-3-1005. This section has no application to a proceeding by a secured creditor of the decedent to enforce a right to the security except as to any deficiency judgment which might be sought therein.
Source: SL 1994, ch 232, § 3-104.
29A-3-105. Proceedings affecting devolution and administration--Jurisdiction of subject matter.
Persons interested in decedents' estates may apply to the clerk of court for determinations in the informal proceedings provided in this article, and may petition the court for orders in formal proceedings within the court's jurisdiction including but not limited to those described in this article. The court may hear and determine formal proceedings and distribution of decedents' estates after notice in conformity with § 29A-1-401. Persons notified are bound though less than all interested persons may have been given notice. The court has jurisdiction of any other action or proceeding concerning a succession or to which an estate, through a personal representative, may be a party, including actions to determine title to property, and of any action or proceeding in which property distributed by a personal representative or its value is sought to be subjected to rights of creditors or successors of the decedent.
Source: SL 1994, ch 232, § 3-105; SL 1995, ch 167, § 100.
29A-3-107. Scope of proceedings--Proceedings independent--Exception.
Unless supervised administration as described in Part 5 is involved, each proceeding before the court or clerk is independent of any other proceeding involving the same estate; and petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay. Except as required for proceedings which are particularly described by other sections of this article, no petition is defective because it fails to embrace all matters which might then be the subject of a final order; a proceeding for probate of a will or an adjudication that a decedent left no valid will may be combined with a proceeding for appointment of a personal representative; and a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.
Source: SL 1994, ch 232, § 3-107; SL 1995, ch 167, § 101.
29A-3-108. Probate, testacy, and appointment proceedings--Ultimate time limit.
No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than three years after the decedent's death, except:
(1) If a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding;
(2) Appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absentee for whom a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person;
(3) A proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful, may be commenced within the later of twelve months from the informal probate or three years from the decedent's death;
(4) An informal or formal appointment or formal testacy proceeding may be commenced thereafter if no proceedings concerning the succession or estate administration have occurred within the three-year period. If proceedings are brought under this exception, the personal representative shall have no right to possess estate assets as provided in § 29A-3-709 beyond that necessary to confirm title thereto in the rightful successors to the estate and no claims other than expenses of administration may be presented against the estate; and
(5) If no informal probate has occurred within three years of the decedent's death, a formal testacy proceeding may be commenced at any time thereafter for the sole purpose of establishing an instrument to direct or control the ownership of property passing or distributable after the decedent's death from one other than the decedent when the property is to be appointed by the terms of the decedent's will or is to pass or be distributed as a part of the decedent's estate or its transfer is otherwise to be controlled by the terms of the decedent's will.
These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate. In cases under (1) or (2) above, the date on which a testacy or appointment proceeding is properly commenced shall be deemed to be the date of the decedent's death for purposes of other limitations provisions of this code which relate to the date of death.
Source: SL 1994, ch 232, § 3-108.
29A-3-109. Statutes of limitation on decedent's cause of action.
The running of any statute of limitations on a cause of action belonging to a decedent which has not been barred as of the date of death is suspended for one year following the decedent's death but resumes thereafter unless otherwise tolled.
Source: SL 1994, ch 232, § 3-109.
29A-3-201. Venue for first and subsequent estate proceedings--Location of property.
(a) Venue for the first informal or formal testacy or appointment proceedings after a decedent's death is:
(1) In the county where the decedent was domiciled at the time of death; or
(2) If the decedent was not domiciled in this state, in any county where property of the decedent was located at the time of death.
(b) Venue for all subsequent proceedings within the exclusive jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in § 29A-1-303 or (c) of this section.
(c) If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court.
(d) For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.
Source: SL 1994, ch 232, § 3-201.
29A-3-202. Appointment or testacy proceedings--Conflicting claim of domicile in another state.
If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this state, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this state must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in this state.
Source: SL 1994, ch 232, § 3-202.
29A-3-203. Priority among persons seeking appointment as personal representative.
(a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
(1) The person with priority as determined by a probated will, including a person nominated by a power conferred in a will;
(2) The surviving spouse of the decedent who is a devisee of the decedent;
(3) Other devisees of the decedent;
(4) The surviving spouse of the decedent;
(5) Other heirs of the decedent;
(6) Forty-five days after the death of the decedent, any other qualified person.
(b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in subsection (a) apply except that:
(1) If the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;
(2) In case of objection to appointment of a person, other than one whose priority is determined by will, by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to the heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value, or, in default of this accord, any qualified person.
(c) A person entitled to letters under subsections (a)(2) through (a)(5) above may nominate a qualified person to have the same priority to act as personal representative as the person nominating. Any person may renounce the right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment in informal proceedings.
(d) Conservators of the estates of protected persons, or if there is no conservator, a guardian of a protected person, may exercise the same right to nominate, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person would have if qualified for appointment.
(e) Formal proceedings are required to appoint a personal representative in any of the following situations:
(1) When there is a person with a higher priority who has not renounced or waived the right by appropriate writing filed with the court;
(2) When a priority and right to nominate is shared by two or more persons, and one or more of them has not renounced or concurred in nominating the person whose appointment is applied for;
(3) When an appointment is sought for a person who does not have any priority under this section, in which event the court, prior to making the appointment, shall determine that those having priority do not object to the appointment, and that administration is necessary.
(f) No person is qualified to serve as a personal representative who is:
(1) Under the age of eighteen;
(2) A person whom the court finds unsuitable in formal proceedings; or
(3) A bank or trust company not qualified to do trust business or exercise trust powers in this state.
(g) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.
(h) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.
Source: SL 1994, ch 232, § 3-203; SL 1995, ch 167, § 102.
29A-3-204. Demand for notice of order or filing concerning decedent's estate.
Any interested person desiring notice of any order or filing pertaining to a decedent's estate may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of the demandant's interest in the estate, and the demandant's address or that of the demandant's attorney. The demandant shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in § 29A-1-401 to the demandant or the demandant's attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of the demandant's interest in the estate.
Source: SL 1994, ch 232, § 3-204.
29A-3-301. Informal probate or appointment proceedings--Application--Contents.
(a) An informal probate proceeding is an informal proceeding for probate of a decedent's will with or without an application for informal appointment. An informal appointment proceeding is an informal proceeding for appointment of a personal representative in testate or intestate estates. Applications for informal probate or informal appointment shall be directed to the clerk of court, and verified by the applicant to be accurate and complete to the best of the applicant's knowledge and belief as to the following information:
(1) Every application for informal probate of a will or for informal appointment of a personal representative, other than a special administrator or successor representative, shall contain the following:
(i) A statement of the interest of the applicant;
(ii) The name, birthdate and date of death of the decedent, the county and state of the decedent's domicile at the time of death, and, so far as known or ascertainable with reasonable diligence by the applicant, the names and addresses of the heirs and devisees and the ages of any who are minors;
(iii) If the decedent was not domiciled in the state at the time of death, a statement showing venue;
(iv) A statement identifying and indicating the address of any personal representative of the decedent appointed in this state or elsewhere whose appointment has not been terminated;
(v) A statement indicating whether the applicant has received a demand for notice, or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere; and
(vi) A statement that the time limit for informal probate or appointment as provided in this chapter has not expired either because three years or less have passed since the decedent's death, or, if more than three years from death have passed, circumstances as described by § 29A-3-108 authorizing late probate or appointment have occurred;
(2) An application for informal probate of a will shall state the following in addition to the statements required by subdivision (1):
(i) That the original of the decedent's will is in the possession of the court, or accompanies the application, or that a certified copy of a will probated in another jurisdiction accompanies the application;
(ii) That the applicant, to the best of the applicant's knowledge, believes the will to have been validly executed;
(iii) That the applicant believes that the instrument which is the subject of the application is the decedent's will, and that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will or of any other unrevoked testamentary instrument relating to property having a situs in this state under § 29A-1-301, or, a statement why any such unrevoked testamentary instrument of which the applicant may be aware is not being probated;
(3) An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address, and priority for appointment of the person whose appointment is sought;
(4) An application for informal appointment of a personal representative in intestacy shall state in addition to the statements required by subdivision (1):
(i) That after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this state under § 29A-1-301, or, a statement why any such instrument of which the applicant may be aware is not being probated;
(ii) The name, address, and priority for appointment of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under § 29A-3-203;
(5) An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant;
(6) An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in § 29A-3-610(c), or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.
(b) By verifying an application for informal probate, or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application, or for perjury, that may be instituted against the applicant.
Source: SL 1994, ch 232, § 3-301; SL 1995, ch 167, § 103; SL 2002, ch 138, § 2; SL 2006, ch 153, § 1.
29A-3-302. Informal probate--Duty of clerk--Effect of informal probate.
Upon receipt of an application requesting informal probate of a will, the clerk, upon making the findings required by § 29A-3-303 shall issue a written statement of informal probate if at least one hundred twenty hours have elapsed since the decedent's death. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void.
Source: SL 1994, ch 232, § 3-302; SL 1995, ch 167, § 104.
29A-3-303. Informal probate--Proof and findings required.
(a) In an informal proceeding for original probate of a will, the clerk shall determine whether:
(1) The application is complete;
(2) The applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant's knowledge and belief;
(3) The applicant appears from the application to be an interested person as defined in § 29A-1-201(23);
(4) On the basis of the statements in the application, venue is proper;
(5) An original, duly executed and apparently unrevoked will is in the registrar's possession;
(6) Any notice required by § 29A-3-204 has been given; and
(7) It appears from the application that the time limit for original probate has not expired.
(b) The application shall be denied if it indicates that a personal representative has been appointed in another county of this state or except as provided in subsection (d) below, if it appears that this or another will of the decedent has been the subject of a previous probate order.
(c) A will which appears to have the required signatures and which contains an attestation clause showing that the requirements of execution under § 29A-2-502, 29A-2-503, or 29A-2-506 have been met shall be probated without further proof. In other cases, the clerk may assume execution if the will appears to have been properly executed, or the clerk may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.
(d) Informal probate of a will which has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of a certified copy of the will and of the statement probating it from the office or court where it was first probated.
(e) A will from a foreign jurisdiction which does not provide for probate of a will after death and which is not eligible for probate under subsection (a) above, may be probated in this state upon receipt by the clerk of a duly certified copy of the will and a certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of that jurisdiction.
Source: SL 1994, ch 232, § 3-303; SL 1995, ch 167, § 105.
29A-3-305. Informal probate--Clerk not satisfied.
The clerk of court may decline an application for informal probate if not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of § 29A-3-303 or for any other reason. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.
Source: SL 1994, ch 232, § 3-305; SL 1995, ch 167, § 106.
29A-3-306. Informal probate--Notice requirements.
(a) The applicant shall give notice as described by § 29A-1-401 of the application for informal probate to any person demanding it pursuant to § 29A-3-204, and to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required.
(b) Upon issuance of a statement of informal probate and if no personal representative required to give the written information required by § 29A-3-705 has been appointed, the applicant shall within fourteen days give written information to the heirs and devisees of the admission of the will to probate, together with a copy of the will. The information shall include the name and address of the applicant, the name and location of the court granting the informal probate, and the date of the probate. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. An applicant's failure to give information as required by this section is a breach of duty to the heirs and devisees but does not affect the validity of the probate.
Source: SL 1994, ch 232, § 3-306.
29A-3-307. Informal appointment proceedings--Delay in order--Duty of Clerk--Effect of appointment.
(a) Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in § 29A-3-614, if at least one hundred twenty hours have elapsed since the decedent's death, the clerk, after making the findings required by § 29A-3-308, shall appoint the applicant subject to qualification and acceptance; provided, that if the decedent was a nonresident, the clerk shall delay the order of appointment until thirty days have elapsed since death unless the personal representative appointed at the decedent's domicile is the applicant, or unless the decedent's will directs that the estate be subject to the laws of this state.
(b) The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in §§ 29A-3-608 to 29A-3-612, inclusive, but may not be vacated retroactively.
Source: SL 1994, ch 232, § 3-307; SL 1995, ch 167, § 107.
29A-3-308. Informal appointment proceedings--Proof and findings required.
(a) In informal appointment proceedings, the clerk shall determine whether:
(1) The application for informal appointment of a personal representative is complete;
(2) The applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant's knowledge and belief;
(3) The applicant appears from the application to be an interested person as defined in § 29A-1-201(23);
(4) On the basis of the statements in the application, venue is proper;
(5) Any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator;
(6) Any notice required by § 29A-3-310 has been given;
(7) From the statements in the application, the person whose appointment is sought has priority for appointment.
(b) Unless § 29A-3-612 controls, the application shall be denied if it indicates any of the following:
(1) A personal representative who has not filed a written statement of resignation as provided in § 29A-3-610(c) has been appointed in this or another county of this state;
(2) The decedent was not domiciled in this state, a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, and the applicant is not the domiciliary representative or the representative's nominee;
(3) The other requirements of this section have not been met.
Source: SL 1994, ch 232, § 3-308; SL 1995, ch 167, § 108.
29A-3-309. Informal appointment proceedings--Clerk not satisfied.
The clerk may decline an application for informal appointment if not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of §§ 29A-3-307 and 29A-3-308 or for any other reason. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.
Source: SL 1994, ch 232, § 3-309; SL 1995, ch 167, § 109.
29A-3-310. Informal appointment proceedings--Notice requirements.
The applicant shall give notice as described by § 29A-1-401 of an intention to seek an appointment informally: (1) to any person demanding it pursuant to § 29A-3-204; and (2) to any person having a prior or equal right to appointment not waived in writing and filed with the court. No other notice of an informal appointment proceeding is required.
Source: SL 1994, ch 232, § 3-310.
29A-3-311. Informal appointment unavailable in certain cases.
The clerk shall decline an application for informal appointment if the application indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this state, and which is not filed for probate in this court.
Source: SL 1994, ch 232, § 3-311; SL 1995, ch 167, § 110.
29A-3-401. Formal testacy proceedings--Nature--When commenced.
(a) A formal testacy proceeding is a proceeding conducted before the court to establish a will or determine intestacy. A formal testacy proceeding may be commenced by an interested person filing a petition as described in § 29A-3-402 requesting that the court, after notice and hearing, enter an order probating a will, an order setting aside an informal probate of a will, an order preventing informal probate of a will which is the subject of a pending application, or an order that the decedent died intestate.
(b) A petition may request formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.
(c) During the pendency of a formal testacy proceeding, the clerk shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative.
(d) Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal testacy proceeding, shall refrain from exercising the power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who requests the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.
Source: SL 1994, ch 232, § 3-401; SL 1995, ch 167, § 111.
29A-3-402. Formal testacy or appointment proceedings--Petition; contents.
(a) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, shall be directed to the court, request a judicial order after notice and hearing and contain further statements as indicated in this section.
(b) A petition for formal probate of a will shall:
(1) Request an order determining the heirs and the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated;
(2) Contain the statements required for informal applications as stated in the six paragraphs under subsection 29A-3-301(a)(1), the statements required by paragraphs (ii) and (iii) of subsection 29A-3-301(a)(2); and
(3) State whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
(c) If the original will is neither in the possession of the court nor accompanies the petition and no certified copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.
(d) If the original will, or certified copy of the will as probated in another jurisdiction, is not available, the contents of the will can be proved by a copy of the will and the testimony or affidavit of at least one credible witness that the copy is a true copy of the original, and the will may be admitted to probate if the court is reasonably satisfied that the will was not revoked by the testator. If a copy of the will is not available, the contents of the will can be proved only by clear and convincing proof, and the court shall enter an order setting forth the contents and the names of the witnesses.
(e) A petition for adjudication of intestacy and appointment of a personal representative in intestacy shall request a judicial finding and order determining the heirs and that the decedent left no valid will, and shall contain the statements required by subsections 29A-3-301(a)(1) and (a)(4) and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of a personal representative, in which case, the statements required by paragraph (ii) of subsection 29A-3-301(a)(4) above may be omitted.
Source: SL 1994, ch 232, § 3-402; SL 1995, ch 167, § 112; SL 2002, ch 138, § 3.
29A-3-403. Formal testacy proceedings--Notice of hearing on petition.
(a) Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given by the petitioner in the manner prescribed by § 29A-1-401 to the persons specified in this section and to any additional person who has filed a demand for notice under § 29A-3-204.
(b) Notice shall be given to the following persons: the heirs, devisees, and personal representatives named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all persons who have any interest in the matters being litigated who are either unknown or whose addresses are unknown.
(c) If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on said petition shall be sent by registered or certified mail to the alleged decedent at the alleged decedent's last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable. The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.
Source: SL 1994, ch 232, § 3-403; SL 1995, ch 167, § 113.
29A-3-404. Formal testacy proceedings--Written objections to probate.
Any party to a formal proceeding who opposes the probate of a will for any reason shall state in the pleadings his or her objections to the probate.
Source: SL 1994, ch 232, § 3-404.
29A-3-405. Formal testacy proceedings--Uncontested cases--Hearings and proof.
If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of § 29A-3-409 have been met, or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit or testimony of one of any attesting witnesses to the instrument, including an affidavit of self-proof executed in compliance with § 29A-2-504, is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit.
Source: SL 1994, ch 232, § 3-405; SL 1995, ch 167, § 114.
29A-3-406. Formal testacy proceedings--Contested cases--Testimony of attesting witnesses.
(a) If evidence concerning execution of an attested will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses, if within the state, competent and able to testify, is required. Due execution of an attested or unattested will may be proved by other evidence.
(b) If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.
Source: SL 1994, ch 232, § 3-406.
29A-3-407. Formal testacy proceedings--Burdens in contested cases.
In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate. If a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.
Source: SL 1994, ch 232, § 3-407.
29A-3-408. Formal testacy proceedings--Will construction--Effect of final order in another jurisdiction.
A final order of a court of another state determining testacy, the validity or construction of a will, made in a proceeding involving notice to and an opportunity for contest by all interested persons shall be accepted as determinative by the courts of this state if it includes, or is based upon, a finding that the decedent was domiciled at death in the state where the order was made.
Source: SL 1994, ch 232, § 3-408.
29A-3-409. Formal testacy proceedings--Order--Foreign will.
After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the court finds that the testator is dead, venue is proper and that the proceeding was commenced within the limitation prescribed by § 29A-3-108, it shall determine the decedent's domicile at death, the decedent's heirs, and the decedent's testacy status. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by § 29A-3-612. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a foreign jurisdiction which does not provide for probate of a will after death, may be proved for probate in this state by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of that jurisdiction.
Source: SL 1994, ch 232, § 3-409.
29A-3-410. Formal testacy proceedings--Probate of more than one instrument.
If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of a personal representative, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of § 29A-3-412.
Source: SL 1994, ch 232, § 3-410.
29A-3-411. Formal testacy proceedings--Partial intestacy.
If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the court shall enter an order to that effect.
Source: SL 1994, ch 232, § 3-411.
29A-3-412. Formal testacy proceedings--Effect of order--Vacation.
Subject to appeal and subject to vacation as provided in this section or by other law, a formal testacy order under §§ 29A-3-409 to 29A-3-411, inclusive, including an order that the decedent left no valid will and determining the heirs, is final as to all persons who were properly notified of the proceeding, either by personal service or publication, with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:
(1) The court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if the proponents of the later-offered will were given no notice or only publication notice of the earlier proceeding, except that no such petition may be entertained if it is shown that the proponents (i) were aware of the earlier proceeding and (ii) were aware of the existence of the later-offered will at the time of the earlier proceeding;
(2) If intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that (i) the persons were unaware of their relationship to the decedent, (ii) were unaware of the death, or (iii) were given no notice of the earlier proceeding, except by publication;
(3) A petition for vacation under either (1) or (2) above shall be filed prior to the earlier of the following time limits:
(i) If a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate, or, if the estate is closed by statement, six months after the filing of the closing statement;
(ii) Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by § 29A-3-108 when it is no longer possible to initiate an original proceeding to probate a will of the decedent;
(iii) Twelve months after the entry of the order sought to be vacated;
(4) The order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs;
(5) The finding of the fact of death is conclusive as to an alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at the alleged decedent's last known address and the court finds that a reasonably diligent search as required by § 29A-3-403(c) was made. If the alleged decedent is not dead, even if notice was sent and a reasonably diligent search was made, the alleged decedent may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is equitable in view of all of the circumstances.
Source: SL 1994, ch 232, § 3-412; SL 1995, ch 167, § 115.
29A-3-414. Formal proceedings concerning appointment of personal representative.
(a) A formal proceeding for adjudication regarding the priority or qualification of an applicant for appointment as personal representative, or of a person previously appointed personal representative in informal proceedings, is governed by § 29A-3-402, as well as by this section if an issue concerning the testacy of the decedent is or may be involved. In other cases, the petition shall contain or adopt the statements required by subsection 29A-3-301(a)(1) and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter.
(b) After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative, any person having or claiming priority for appointment as personal representative, the court shall determine who is entitled to appointment under § 29A-3-203, make a proper appointment and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under § 29A-3-611.
Source: SL 1994, ch 232, § 3-414; SL 1995, ch 167, § 116.
29A-3-501. Supervised administration--Nature of proceeding.
Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent's estate under the continuing authority of the court, which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding. A supervised personal representative is responsible to the court, as well as to interested persons, and is subject to directions concerning the estate made by the court on its own motion or on the motion of the personal representative or any other interested person. Except as otherwise provided in this part, or as otherwise ordered by the court, a supervised personal representative has the same duties and powers as a personal representative who is not supervised.
Source: SL 1994, ch 232, § 3-501.
29A-3-502. Supervised administration--Petition--Order.
(a) A petition for supervised administration may be filed by any interested person or by a personal representative at any time or the request for supervised administration may be joined with a petition in a testacy or appointment proceeding. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for supervised administration shall include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding shall apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for supervised administration, even though the request for supervised administration may be denied.
(b) After notice to interested persons, the court shall order supervised administration of a decedent's estate: (1) if the decedent's will directs supervised administration, unless the court finds that circumstances relating to the need for supervised administration have changed since the execution of the will and that there is no necessity for supervised administration; (2) if the decedent's will directs unsupervised administration, only upon a finding that it is necessary for the protection of persons interested in the estate; or (3) in other cases if the court finds that supervised administration is necessary under the circumstances.
Source: SL 1994, ch 232, § 3-502.
29A-3-503. Supervised administration--Effect on other proceedings.
(a) The pendency of a proceeding for supervised administration of a decedent's estate stays action on any informal application then pending or thereafter filed.
(b) If a will has been previously probated in informal proceedings, the effect of the filing of a petition for supervised administration is as provided for formal testacy proceedings by § 29A-3-401.
(c) After the personal representative has received notice of the filing of a petition for supervised administration, a personal representative who has been appointed previously shall not exercise the power to distribute any estate. The filing of the petition does not affect other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition.
Source: SL 1994, ch 232, § 3-503.
29A-3-504. Supervised administration--Powers of personal representative.
Unless restricted by the court, a supervised personal representative has, without interim orders approving exercise of a power, all powers of personal representatives under this code, but a supervised personal representative shall not exercise the power to make any distribution of the estate without prior order of the court. Any other restriction on the power of a personal representative which may be ordered by the court shall be endorsed on the letters of appointment and, unless so endorsed, is ineffective as to persons dealing in good faith with the personal representative.
Source: SL 1994, ch 232, § 3-504.
29A-3-505. Supervised administration--Interim orders--Distribution and closing orders.
Unless otherwise ordered by the court, supervised administration is terminated by order in accordance with time restrictions, notices, and contents of orders prescribed for proceedings under § 29A-3-1001. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of a supervised administration on the motion of the personal representative or any interested person.
Source: SL 1994, ch 232, § 3-505; SL 1995, ch 167, § 117.
29A-3-601. Qualification.
Prior to receiving letters, a personal representative shall qualify by filing with the appointing court an acceptance of office and any required bond.
Source: SL 1994, ch 232, § 3-601.
29A-3-602. Acceptance of appointment--Consent to jurisdiction.
By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the personal representative, or mailed to the personal representative by ordinary first class mail at the address as listed in the application or petition for appointment or as thereafter reported to the court and to the personal representative's address as then known to the petitioner.
Source: SL 1994, ch 232, § 3-602.
29A-3-603. Bond not required without court order, exceptions.
Bond is required of a personal representative unless: (a) the will expressly waives bond, directs that there be no bond, or waives the requirement of surety thereon; (b) all of the heirs, if no will has been probated, or all of the devisees file a written waiver of the bond requirement; (c) the personal representative is a bank or trust company qualified to do trust business or exercise trust powers in this state; or (d) the court concludes that bond is not in the best interests of the estate.
Source: SL 1994, ch 232, § 3-603.
29A-3-604. Bond amount--Security--Procedure--Reduction.
(a) If bond is required and the provisions of the will or order of appointment do not specify the amount, unless stated in the application or petition, the person qualifying as personal representative shall file a statement under oath with the clerk indicating the person's best estimate of the value of the personal estate of the decedent and of the income expected from the personal and real estate during the next year, and shall execute and file a bond with the clerk, or give other suitable security, in an amount not less than the estimate. The clerk shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security.
(b) The clerk may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a financial institution (as defined in § 29A-6-101) that is located in this state and in a manner that prevents their unauthorized disposition.
(c) On petition of the personal representative or another interested person and subject to § 29A-3-603, the court may require bond, excuse bond, increase or reduce the amount of the bond, release sureties, or permit the substitution of another bond with the same or different sureties.
Source: SL 1994, ch 232, § 3-604; SL 1995, ch 167, § 118.
29A-3-606. Terms and conditions of bonds.
(a) The following requirements and provisions apply to any bond required by this part:
(1) Bonds shall name the state as obligee for the benefit of the persons interested in the estate and shall be conditioned upon the faithful discharge by the personal representative of all fiduciary duties according to law.
(2) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond.
(3) By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the probate court which issued letters to the primary obligor in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any proceeding shall be delivered to the surety or mailed by registered or certified mail at the address as listed with the court where the bond is filed and to the surety's address as then known to the petitioner.
(4) On petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative.
(5) The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(b) No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
Source: SL 1994, ch 232, § 3-606.
29A-3-607. Order restraining personal representative.
(a) On petition of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement, or distribution, or exercise of any powers or discharge of any duties of office, or make any other order to secure proper performance by the personal representative, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the petitioner or of some other interested person. Persons with whom the personal representative may transact business may be made parties.
(b) The matter shall be set for hearing at such time and with such notice as the court shall direct.
Source: SL 1994, ch 232, § 3-607.
29A-3-608. Termination of appointment--General.
Termination of appointment of a personal representative occurs as provided in §§ 29A-3-609 to 29A-3-612, inclusive. Termination ends the right and power pertaining to the office of personal representative as conferred by this code or any will, except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve the personal representative of the duty to preserve assets subject to the personal representative's control, to account therefor and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates the personal representative's authority to represent the estate in any pending or future proceeding.
Source: SL 1994, ch 232, § 3-608.
29A-3-609. Termination of appointment--Death or disability.
The death of a personal representative or the appointment of a conservator for a personal representative who has been adjudicated a protected person, terminates the personal representative's appointment. Unless a co-representative remains in office, termination by death or appointment of a conservator imposes upon the personal representative of the deceased personal representative, or the conservator appointed for a living personal representative, the duty to protect the estate possessed and being administered at the time of termination, and confers the power to perform acts necessary to protect the estate and to account for, and deliver the assets to, a successor personal representative or special administrator upon appointment and qualification.
Source: SL 1994, ch 232, § 3-609.
29A-3-610. Termination of appointment--Voluntary.
(a) An appointment of a personal representative terminates as provided in § 29A-3-1003, one year after the filing of a closing statement.
(b) An order closing an estate as provided in § 29A-3-1001 terminates an appointment of a personal representative.
(c) A personal representative may resign the position of personal representative by filing a written statement of resignation with the clerk after giving at least fourteen days written notice to the persons known to be interested in the estate. If the person resigning is the sole personal representative and no one applies or petitions for appointment of a successor representative within the time stated in the notice, the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to that successor. If the person resigning is a co-representative, the resignation is effective only upon delivery of assets in the representative's possession to the co-representatives remaining in office.
Source: SL 1994, ch 232, § 3-610; SL 1995, ch 167, § 119.
29A-3-611. Termination of appointment by removal--Cause; procedure.
(a) Any interested person may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in § 29A-3-607, after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration, or to preserve the estate. If removal is ordered, the court shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.
(b) Cause for removal exists when:
(1) Removal is in the best interests of the estate;
(2) The personal representative or the person requesting the representative's appointment intentionally misrepresented material facts in the proceedings leading to appointment; or
(3) The personal representative has disregarded an order of court, has become incapable of discharging the duties of office, has mismanaged the estate, or has failed to perform any duty pertaining to the office.
(c) Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's domicile who is requesting appointment either personally or of a nominee as personal representative, may obtain removal of another who was appointed personal representative in this state to administer local assets.
Source: SL 1994, ch 232, § 3-611.
29A-3-612. Termination of appointment--Change of testacy status.
Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy, the probate of a later-offered will which supersedes the formal probate of another will, or the vacation of an informal probate of a will under which the personal representative was appointed, does not terminate the appointment of the personal representative although the personal representative's powers may be reduced as provided in § 29A-3-401. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to succeed to the appointment under the new testacy status. If no request for new appointment is made within thirty days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the decedent's testacy status, the previously appointed personal representative may continue as personal representative under the subsequently probated will, or in intestacy, as the case may be.
Source: SL 1994, ch 232, § 3-612.
29A-3-613. Successor personal representative.
Parts 3 and 4 of this chapter govern proceedings for appointment of a personal representative to succeed one whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party, and no notice, process or claim which was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative.
Source: SL 1994, ch 232, § 3-613.
29A-3-614. Special administrator--Appointment.
A special administrator may be appointed:
(1) Informally by the clerk on the application of any interested person when necessary to protect the estate of a decedent prior to the appointment of a general personal representative or, if a prior appointment has been terminated, as provided in § 29A-3-609; or
(2) In a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice.
Source: SL 1994, ch 232, § 3-614; SL 1995, ch 167, § 120; SL 1999, ch 145, § 1.
29A-3-615. Special administrator--Who may be appointed.
(a) If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named personal representative in the will shall be appointed if available and qualified.
(b) In other cases, any qualified person may be appointed special administrator.
Source: SL 1994, ch 232, § 3-615.
29A-3-616. Special administrator--Appointed informally--Powers and duties.
A special administrator appointed by the clerk in informal proceedings pursuant to § 29A-3-614(1) has the duty to collect and manage the assets of the estate, to preserve them, to account therefor, and to deliver them to the general personal representative upon qualification. The special administrator appointed in informal proceedings has the powers of a general personal representative under the code as are necessary to perform the special administrator's duties.
Source: SL 1999, ch 145, § 2.
29A-3-617. Special administrator--Formal proceedings--Power and duties.
A special administrator appointed by order of the court in any formal proceeding has the powers of a general personal representative, except as limited in the order of appointment, and the duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts or on other terms as the court may direct.
Source: SL 1994, ch 232, § 3-617.
29A-3-618. Termination of appointment--Special administrator.
The appointment of a special administrator terminates in accordance with the provisions of the order of appointment or on the appointment of a general personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in §§ 29A-3-608 to 29A-3-611, inclusive.
Source: SL 1994, ch 232, § 3-618.
29A-3-701. Time of accrual of duties and powers.
The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named personal representative in a will may carry out written instructions of the decedent relating to the decedent's body, funeral and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
Source: SL 1994, ch 232, § 3-701.
29A-3-702. Priority among different letters.
A person to whom letters are issued first has exclusive authority under the letters until the appointment is terminated or modified. If, through error, letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
Source: SL 1994, ch 232, § 3-702.
29A-3-703. General duties--Relation and liability to persons interested in estate--Standing to sue.
(a) A personal representative is a fiduciary who, except as otherwise provided in the will, shall observe the standards of care in dealing with the estate assets that would be observed by a prudent person dealing with the property of another. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this code, and as expeditiously and efficiently as is consistent with the best interests of the estate. A personal representative shall use the authority conferred by this code, the terms of the will, if any, and any order in proceedings to which the personal representative is party for the best interests of the estate.
(b) A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning the appointment or fitness to continue, or a supervised administration proceeding. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor and dependent children, and any pretermitted child of the decedent as described elsewhere in this code.
(c) Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as the decedent had immediately prior to death.
Source: SL 1994, ch 232, § 3-703.
29A-3-704. Personal representative to proceed without court order--Exception.
A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and, except as otherwise specified or ordered in regard to a supervised personal representative, shall do so without adjudication, order, or direction of the court, but the personal representative may invoke the jurisdiction of the court, in proceedings authorized by this code, to resolve questions concerning the estate on its administration.
Source: SL 1994, ch 232, § 3-704.
29A-3-705. Duty of personal representative--Information to heirs and devisees.
(a) Not later than fourteen days after appointment, every personal representative, except any special administrator, shall give information of the appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any unprobated will mentioned in the application for appointment of a personal representative.
(b) The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information shall include the name and address of the personal representative, indicate that it is being sent to persons who have or may have some interest in the estate being administered, indicate whether bond has been filed, describe the court where papers relating to the estate are on file, and shall be accompanied by a copy of the will admitted to probate, if any. The information shall state that the estate is being administered by the personal representative under the South Dakota Probate Code without supervision by the court but that recipients are entitled to information regarding the administration from the personal representative, to file a demand for notice under § 29A-3-204, and to petition the court in any matter relating to the estate, including distribution of assets and expenses of administration.
(c) Not later than fourteen days after appointment, every personal representative, other than a special administrator, shall also give written information of the appointment to the State Department of Social Services in Pierre, South Dakota, except that such information need not include a copy of the will. The information shall include the decedent's social security number and, if available upon reasonable investigation, the decedent's deceased spouse's name and social security number. The written information required in this section may not be filed with the court and the social security numbers of the decedent and the decedent's deceased spouse are not available to the public, but the personal representative shall certify to the court that the information required in this section has been provided to the department.
(d) The personal representative's failure to give the information is a breach of duty to the persons concerned but does not affect the validity of the appointment, the personal representative's powers or other duties. A personal representative may inform other persons of the appointment.
Source: SL 1994, ch 232, § 3-705; SL 1995, ch 167, § 122; SL 1997, ch 173, § 1; SL 2006, ch 153, § 2.
29A-3-706. Duty of personal representative--Inventory and appraisement.
Within six months after appointment, or nine months after the decedent's death, whichever is later, a personal representative, other than a special administrator or a successor to another representative who has previously discharged this duty, shall prepare an inventory of property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item.
The personal representative shall promptly make a copy of the inventory available, by mail or delivery, to any interested person who requests it. The personal representative may also file the original of the inventory with the court.
Source: SL 1994, ch 232, § 3-706.
29A-3-707. Employment of appraisers.
The personal representative may employ a qualified and disinterested appraiser to assist in ascertaining the fair market value as of the date of the decedent's death of any asset the value of which may not be readily ascertainable. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items appraised.
Source: SL 1994, ch 232, § 3-707.
29A-3-708. Duty of personal representative--Supplementary inventory.
If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, the personal representative shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any. The personal representative shall file the supplemental inventory with the court if the original inventory was filed, and shall mail or deliver a copy of the supplemental inventory to the persons sent a copy of the original inventory and to other interested persons who request it.
Source: SL 1994, ch 232, § 3-708.
29A-3-709. Duty of personal representative--Possession of estate.
Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in the personal representative's possession. The personal representative may maintain an action to recover possession of property or to determine its title.
Source: SL 1994, ch 232, § 3-709.
29A-3-710. Power to avoid transfers.
The property liable for the payment of unsecured debts of a decedent includes all property transferred by the decedent by any means which is in law void or voidable as against creditors. Subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative.
Source: SL 1994, ch 232, § 3-710.
29A-3-711. Powers of personal representatives--In general.
Until termination of an appointment, a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.
Source: SL 1994, ch 232, § 3-711.
29A-3-712. Improper exercise of power--Breach of fiduciary duty.
If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of fiduciary duty. The rights of purchasers and others dealing with a personal representative shall be determined as provided in §§ 29A-3-713 and 29A-3-714.
Source: SL 1994, ch 232, § 3-712.
29A-3-713. Sale, encumbrance, or transaction involving conflict of interest--Voidable--Exceptions.
Any sale or encumbrance to the personal representative, the personal representative's spouse, agent or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless:
(1) The will or a contract entered into by the decedent expressly authorized the transaction; or
(2) The transaction is approved by the court after notice to interested persons.
Source: SL 1994, ch 232, § 3-713.
29A-3-714. Persons dealing with personal representative--Protection.
A person who in good faith either assists a personal representative or deals with a personal representative for value is protected as if the personal representative was properly authorized to act. The fact that a person deals with a personal representative with knowledge of the representative capacity does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of supervised personal representatives which are endorsed on letters as provided in § 29A-3-504, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which an alleged decedent is found to be alive.
Source: SL 1994, ch 232, § 3-714.
29A-3-715. Transactions authorized for personal representatives--Exceptions.
(a) Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the priorities stated in § 29A-3-902, a personal representative, acting reasonably for the benefit of the estate, may properly:
(1) Retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment;
(2) Receive assets from fiduciaries, or other sources;
(3) Perform, compromise, or refuse performance of the decedent's contracts that continue as obligations of the estate, as the personal representative may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may:
(i) Execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on the land; or
(ii) Deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement;
(4) Satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances;
(5) Invest and reinvest the funds of the estate in accordance with the standard of prudence as specified in chapter 55-5;
(6) Acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
(7) Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing or erect new party walls or buildings;
(8) Subdivide, develop or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; or adjust difference in valuation on exchange or partition by giving or receiving considerations; or dedicate easements to public use without consideration;
(9) Enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the period of administration;
(10) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(11) Abandon property when, in the opinion of the personal representative, it is valueless, or is so encumbered, or is in condition that it is of no benefit to the estate;
(12) Vote stocks or other securities in person or by general or limited proxy;
(13) Pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims;
(14) Hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held;
(15) Insure the assets of the estate against damage, loss, and liability and the personal representative against liability as to third persons;
(16) Borrow money with or without security to be repaid from the estate assets or otherwise; and advance money for the protection of the estate;
(17) Effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge, or other lien upon property of another person, the personal representative may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;
(18) Pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate;
(19) Sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(20) Allocate items of income or expense to either estate income or principal, as permitted or provided by law;
(21) Employ persons, including attorneys, accountants, investment advisors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary;
(22) Prosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of the personal representative's duties;
(23) Sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, credit, or for part cash and part credit, and with or without security for unpaid balances;
(24) Continue or participate in the operation of or incorporate any unincorporated business or other enterprise of the decedent;
(25) Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate;
(26) Satisfy and settle claims and distribute the estate as provided in this code.
(b) Not less than fourteen days prior to the closing of any sale of real or personal property of the estate for which the fair market value is not readily ascertainable, the personal representative shall provide written information of the intent to sell to the persons who have filed a demand for notice under § 29A-3-204. The written information shall contain a description of the property to be sold, the name of the purchaser, the sale price, the terms of payment, and the nature of the security if the payment of any portion of the purchase price is to be deferred.
Source: SL 1994, ch 232, § 3-715.
29A-3-716. Powers and duties of successor personal representative.
(a) Except as otherwise ordered by the court, a successor personal representative has the same powers and duties as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but the successor shall not exercise any power expressly made personal to the personal representative named in the will.
(b) A successor personal representative is not individually liable for the actions or failures to act of a previous personal representative unless the successor has knowledge of a breach of fiduciary duty by the predecessor and fails to take reasonable corrective action.
Source: SL 1994, ch 232, § 3-716.
29A-3-717. Co-representatives--When joint action required.
If two or more persons are appointed co-representatives and unless the will provides otherwise, the concurrence of a majority is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any co-representative receives and receipts for property due the estate, when the concurrence of a majority cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a co-representative has been delegated to act for the others. Persons dealing with a co-representative if actually unaware that another has been appointed to serve or if advised by the personal representative with whom they deal that the personal representative has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the person with whom they dealt has been the sole personal representative.
Source: SL 1994, ch 232, § 3-717.
29A-3-718. Powers of surviving personal representative.
Unless the terms of the will otherwise provide, when one or more persons nominated as co-representatives fail or refuse to qualify or accept appointment as personal representative, or when the appointment of one or more co-representatives is terminated as provided in §§ 29A-3-609 to 29A-3-612, inclusive, the representative or representatives appointed or remaining in office shall proceed to administer the estate and may exercise all of the powers incident to the office.
Source: SL 1994, ch 232, § 3-718.
29A-3-719. Compensation of personal representative.
(a) Personal representatives, attorneys, accountants, appraisers, and other agents of the personal representative are entitled to reasonable compensation for services. Reasonable compensation may include compensation for the services of the agents or employees of the person seeking compensation and may also include reimbursement for costs advanced. A determination of reasonable compensation shall be based on the following factors:
(1) The time and labor involved;
(2) The novelty and difficulty of the questions involved, and the skill requisite to perform the service properly;
(3) The likelihood that the acceptance of the particular employment will preclude other employment by the person;
(4) The fee customarily charged in the locality for similar services;
(5) The nature and value of the assets of the estate, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person;
(6) The time limitations imposed by the circumstances; and
(7) The experience, reputation, diligence, and ability of the person performing the services.
(b) If a will provides for compensation of the personal representative and there is no contract with the decedent regarding compensation, the personal representative may renounce the provision before qualifying and be entitled to reasonable compensation. A personal representative also may renounce the right to all or any part of the compensation. A renunciation of fee may be filed with the court.
(c) When compensation is not provided by will, or in an intestate proceeding, the personal representative may be allowed commissions upon the amount of personal property accounted for by the personal representative, excluding personal property not ranked as assets, as follows:
(1) On the first one thousand dollars at the rate of five percent;
(2) On all sums in excess of one thousand dollars and not exceeding five thousand dollars at the rate of four percent;
(3) On all sums in excess of five thousand dollars at the rate of two and one-half percent.
Upon all real property accounted for by the personal representative, the personal representative shall receive a just and reasonable compensation for the services performed to be fixed by the court. All real estate sold by the personal representative as part of the proceedings in probate shall be considered as personal property.
Source: SL 1994, ch 232, § 3-719; SL 1995, ch 167, § 123; SL 1996, ch 187.
29A-3-720. Expenses in estate litigation.
Any personal representative or person nominated as personal representative who defends or prosecutes any proceeding in good faith, whether successful or not, is entitled to receive from the estate necessary expenses and disbursements including reasonable attorney's fees. The court may also award necessary expenses and disbursements, including reasonable attorney's fees, to any person who prosecuted or defended an action that resulted in a substantial benefit to the estate.
Source: SL 1994, ch 232, § 3-720.
29A-3-721. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.
After notice to all interested persons, on petition of an interested person or on appropriate motion if administration is supervised, the court may review the propriety of employment of any person by a personal representative including any attorney, accountant, investment advisor, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation of the personal representative. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.
Source: SL 1994, ch 232, § 3-721.
29A-3-801. Notice to creditors.
(a) A personal representative upon appointment may publish a notice to creditors once a week for three successive weeks in a legal newspaper in the county in which the proceeding is pending giving the personal representative's name and address and notifying creditors of the decedent to present their claims within four months after the date of the first publication of the notice or the claim may be barred.
(b) Except as provided in subsection (c), a personal representative shall give written notice by mail or other delivery to a creditor of the decedent, who is either known to or reasonably ascertainable by the personal representative, informing the creditor to present the claim within four months after the date of the personal representative's appointment, or within sixty days after the mailing or other delivery of the written notice, whichever is later, or be forever barred.
(c) A personal representative need not give written notice to a creditor if any of the following apply:
(1) The creditor has presented a claim against the estate;
(2) The creditor has been paid in full;
(3) The creditor was neither known to nor reasonably ascertainable by the personal representative within four months after the personal representative's appointment.
(d) For purposes of this section, a creditor is known if the personal representative is aware that the creditor has demanded payment from the decedent or the estate or if the personal representative is otherwise aware of the decedent's obligation.
(e) No personal representative may incur liability for a nonnegligent or nonwillful failure to give notice to a particular creditor. Liability, if any, for such failure shall attach to the estate.
Source: SL 1994, ch 232, § 3-801; SL 1995, ch 167, § 124.
29A-3-802. Statutes of limitations.
(a) Unless an estate is insolvent, or would thereby be rendered insolvent, the personal representative, with the consent of all successors whose interests would be affected, may waive any defense of limitations available to the estate. If the defense is not waived, no claim barred by a statute of limitations at the time of the decedent's death may be allowed or paid.
(b) The running of a statute of limitations measured from an event other than death or the giving of notice to creditors is suspended for two years after the decedent's death, but resumes thereafter as to claims not otherwise barred.
(c) For purposes of a statute of limitations, the presentation of a claim pursuant to § 29A-3-804 is equivalent to commencement of a proceeding on the claim.
Source: SL 1994, ch 232, § 3-802.
29A-3-803. Limitations on presentation of claims.
(a) All claims against a decedent's estate which arose before the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by another statute of limitations or nonclaim statute, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
(1) As to creditors barred by publication, within the time set in the published notice to creditors;
(2) As to creditors barred by written notice, within the time set in the written notice;
(3) As to all creditors, within three years after the decedent's death.
(b) A claim described in subsection (a) which is barred by the nonclaim statute of the decedent's domicile before the giving of notice to creditors in this state is barred in this state.
(c) Nothing in this section affects or prevents:
(1) Any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate;
(2) To the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which there is protection through liability insurance; or
(3) Collection of compensation for services rendered and reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate.
Source: SL 1994, ch 232, § 3-803; SL 1995, ch 167, § 125.
29A-3-804. Manner of presentation of claims.
(a) Claims against a decedent's estate may be presented by either of the following methods:
(1) The claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, or may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court and mail or deliver a copy thereof to the personal representative. The claim is deemed presented on the first to occur of receipt of the written statement of claim by the personal representative, or the filing of the claim with the clerk of court. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the nature of the security shall be described. Failure to describe correctly the nature of the security or uncertainty, or the due date of a claim not yet due does not invalidate the presentation;
(2) The claimant may commence a proceeding against the personal representative in any court where the personal representative may be subject to jurisdiction, to obtain payment of the claim. The claim is deemed presented on the date the proceeding is commenced.
(b) No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of death in any court.
(c) No proceeding to obtain payment of a claim presented under subsection (a)(1) may be commenced more than sixty days after the personal representative has mailed or delivered a notice of disallowance; but, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the sixty-day period, or to avoid injustice the court, on petition, may order an extension of the sixty-day period, but in no event may an extension be granted beyond the applicable statute of limitations.
Source: SL 1994, ch 232, § 3-804; SL 1995, ch 167, § 126.
29A-3-805. Classification of claims.
(a) If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:
(1) Costs and expenses of administration;
(2) Reasonable funeral expenses;
(3) Debts and taxes with preference under federal law;
(4) Debts and taxes with preference under other laws of this state;
(5) All other claims.
(b) No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.
Source: SL 1994, ch 232, § 3-805.
29A-3-806. Allowance of claims.
(a) As to claims presented to the personal representative or filed with the clerk of court within the time limit prescribed in § 29A-3-803, the personal representative may mail a notice to any claimant stating that the claim has been allowed or disallowed. Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than sixty days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail notice to a claimant of action on a claim for sixty days after the time for original presentation of the claim has expired has the effect of a notice of allowance.
(b) The personal representative may at any time prior to payment change the allowance to a disallowance in whole or in part, but not after allowance by court order or judgment or an order directing payment of the claim. The personal representative shall notify the claimant of the change to disallowance, and the disallowed claim is then subject to bar as provided in subsection (a). The personal representative may change a disallowance to an allowance, in whole or in part, until the claim is barred under subsection (a); after it is barred, it may be allowed and paid only if the estate is solvent and all successors whose interests would be affected consent.
(c) Upon the petition of the personal representative or of a claimant, the court may allow in whole or in part any claim or claims presented to the personal representative or filed with the clerk of court in due time and not barred by subsection (a) of this section. Notice of the proceeding shall be given to the claimant, the personal representative, and to such other interested persons as the court may direct.
(d) A judgment in a proceeding in any court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim.
(e) Unless otherwise provided in a judgment entered against the personal representative in any court, interest is payable on all allowed claims at the category B rate of interest specified in § 54-3-16 commencing sixty days after the time for original presentation of the claim has expired unless the claim is based on a contract providing for payment of interest, in which case the contract provisions shall control.
Source: SL 1994, ch 232, § 3-806; SL 1995, ch 167, § 127.
29A-3-807. Payment of claims.
(a) Upon the expiration of the earlier of the time limitations provided in § 29A-3-803 for the presentation of claims, the personal representative shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, family and support allowances, for claims already presented that have not yet been allowed or whose allowance has been appealed, and for unbarred claims that may yet be presented, including costs and expenses of administration. By petition to the court in a proceeding for the purpose, or by appropriate motion if the administration is supervised, a claimant whose claim has been allowed but not paid may secure an order directing the personal representative to pay the claim to the extent funds of the estate are available to pay it.
(b) The personal representative at any time may pay any valid claim that has not been barred, with or without formal presentation, but is personally liable to any other claimant whose claim is allowed and who is injured by its payment if:
(1) Payment was made before the expiration of the time limit stated in subsection (a) and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or
(2) Payment was made, due to negligence or willful fault of the personal representative, in such manner as to deprive the injured claimant of priority.
Source: SL 1994, ch 232, § 3-807; SL 1995, ch 167, § 128.
29A-3-808. Individual liability of personal representative.
(a) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in a fiduciary capacity in the course of administration of the estate unless the personal representative fails to reveal the representative capacity or identify the estate in the contract.
(b) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if personally negligent.
(c) Claims based on contracts entered into by a personal representative in a fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in the representative's fiduciary capacity, whether or not the personal representative is individually liable therefor.
(d) Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification or other appropriate proceeding.
Source: SL 1994, ch 232, § 3-808.
29A-3-809. Secured claims.
Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders the security; otherwise payment is upon the basis of one of the following:
(1) If the creditor exhausts the security before receiving payment (unless precluded by other law), upon the amount of the claim allowed less the fair value of the security; or
(2) If the creditor does not have the right to exhaust the security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise, or litigation.
Source: SL 1994, ch 232, § 3-809.
29A-3-810. Claims not due and contingent or unliquidated claims.
(a) If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed, it is paid in the same manner as presently due and absolute claims of the same class.
(b) In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:
(1) If the claimant consents, the claimant may be paid the present or agreed value of the claim, taking any uncertainty into account;
(2) Arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.
Source: SL 1994, ch 232, § 3-810.
29A-3-811. Counterclaims.
In allowing a claim the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate a court shall reduce the amount allowed by the amount of any counterclaim and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.
Source: SL 1994, ch 232, § 3-811.
29A-3-812. Execution and levies prohibited.
No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges, or liens upon real or personal property in an appropriate proceeding.
Source: SL 1994, ch 232, § 3-812.
29A-3-813. Compromise of claims.
When a claim against the estate has been presented in any manner, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.
Source: SL 1994, ch 232, § 3-813.
29A-3-814. Encumbered assets.
If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance or convey or transfer the assets to the creditor in satisfaction of a lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.
Source: SL 1994, ch 232, § 3-814.
29A-3-815. Administration in more than one state--Duty of personal representative.
(a) All assets of estates being administered in this state are subject to all claims, allowances and charges existing or established against the personal representative wherever appointed.
(b) If the estate, either in this state or as a whole, is insufficient to cover family exemptions and allowances determined by the law of the decedent's domicile, and claims and prior charges, each claimant whose claim has been allowed either in this state or elsewhere in administrations of which the personal representative is aware, is entitled to receive payment of an equal proportion of the claim, after satisfaction of the exemptions, allowances and prior charges. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this state, the creditor so benefited is to receive distribution from local assets only upon the balance of the claim after deducting the amount of the benefit.
(c) In case the family exemptions and allowances, claims and prior charges of the entire estate exceed the total value of the portions of the estate being administered separately and this state is not the state of the decedent's last domicile, the claims allowed in this state shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this state the amount to which they are entitled, local assets shall be marshaled so that each claim allowed in this state is paid its proportion as far as possible, after taking into account all distributions on claims allowed in this state from assets in other jurisdictions.
Source: SL 1994, ch 232, § 3-815.
29A-3-816. Final distribution to domiciliary representative.
The estate of a nonresident decedent being administered by a personal representative appointed in this state shall, if there is a personal representative of the decedent's domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless (1) by virtue of the decedent's will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of this state without reference to the local law of the decedent's domicile; (2) the personal representative of this state, after reasonable inquiry, is unaware of the existence or identity of a domiciliary personal representative; or (3) the court orders otherwise in a proceeding for a closing order under § 29A-3-1001 or incident to the closing of a supervised administration. In other cases, distribution of the estate of a decedent shall be made in accordance with the other parts of this chapter.
Source: SL 1994, ch 232, § 3-816; SL 1995, ch 167, § 129.
29A-3-817. Department of Social Services' claim for indebtedness incurred by paying for medical assistance or care.
The Department of Social Services is entitled to receive personal property of a decedent by presenting an affidavit pursuant to § 29A-3-1201 and a statement that the department has incurred an indebtedness by paying for the medical assistance for nursing home or other medical institutional care on behalf of the decedent. If the person paying, delivering, transferring, or issuing personal property or the evidence thereof is aware of any such indebtedness, no payment or delivery may be made, except for payment of funeral expenses, unless payment is first made to the Department of Social Services or the department has issued a satisfaction of indebtedness.
Source: SL 1995, ch 167, § 138.
29A-3-901. Successors' rights if no administration.
In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by homestead allowance, exemption or intestacy may establish title thereto by proof of the decedent's ownership, death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.
Source: SL 1994, ch 232, § 3-901.
29A-3-902. Abatement--Order and amount.
Unless a contrary intent is indicated in the will, and except as otherwise provided in this code, shares abate in the following order: (1) property not disposed of by the will; (2) property devised to a residuary devisee; (3) property not specifically devised; and (4) all other property. Abatement within each class is in proportion to the amount of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
Source: SL 1994, ch 232, § 3-902; SL 1995, ch 167, § 130.
29A-3-903. Right of retainer.
Unless a contrary intent is indicated in the will, the amount of a noncontingent indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor's interest; but the successor has the benefit of any defense which would be available to the successor in a direct proceeding for recovery of the debt.
Source: SL 1994, ch 232, § 3-903.
29A-3-904. Interest on general pecuniary devise.
General pecuniary devises bear interest at the category B rate of interest specified in § 54-3-16 beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will.
Source: SL 1994, ch 232, § 3-904; SL 1995, ch 167, § 131.
29A-3-905. Penalty clause for contest.
A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
Source: SL 1994, ch 232, § 3-905.
29A-3-906. Distribution in kind--Valuation--Method.
(a) Unless a contrary intention is indicated by the will, the distributable assets of a decedent's estate shall be distributed in kind to the extent possible through application of the following provisions:
(1) A specific devisee is entitled to distribution of the thing devised, and a spouse or child who has selected particular assets of an estate as provided in § 29A-2-402 shall receive the items selected.
(2) Any homestead or family allowance or devise of a stated sum of money may be satisfied in kind provided:
(i) The person entitled to the payment has not demanded payment in cash;
(ii) The property distributed in kind is valued at fair market value as of the date of its distribution; and
(iii) No residuary devisee has requested that the asset in question remain a part of the residue of the estate.
(3) The residuary estate shall be distributed in any equitable manner.
(4) For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable manner, including the employment of qualified appraisers, even if the assets may have been previously appraised.
(b) After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset to be received, if not waived earlier in writing, terminates if the distributee fails to object in writing within fourteen days after the mailing or delivery of the proposal but only if the proposal informed the distributee of the right to object and of the applicable time limit.
Source: SL 1994, ch 232, § 3-906.
29A-3-907. Distribution in kind--Evidence.
If distribution in kind is made, the personal representative shall execute an instrument or deed of distribution assigning, transferring, or releasing the assets to the distributee as evidence of the distributee's title to the property.
Source: SL 1994, ch 232, § 3-907.
29A-3-908. Distribution--Right or title of distributee.
Proof that a distributee has received an instrument or deed of distribution of assets in kind, or payment in distribution, from a personal representative, is conclusive evidence that the distributee has succeeded to the interest of the decedent and the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper.
Source: SL 1994, ch 232, § 3-908.
29A-3-909. Improper distribution--Liability of distributee.
Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if the distributee or claimant has the property. If the distributee or claimant does not have the property, then the distributee or claimant is liable to return the value as of the date of disposition of the property improperly received and any income and gain which the distributee or claimant received.
Source: SL 1994, ch 232, § 3-909.
29A-3-910. Purchasers from distributees protected.
If property distributed in kind or a security interest therein is acquired for value by a purchaser from or lender to a distributee who has received an instrument or deed of distribution from the personal representative, or is so acquired by a purchaser from or lender to a transferee from such distributee, the purchaser or lender takes title free of rights of any interested person in the estate and incurs no personal liability to the estate, or to any interested person, whether or not the distribution was proper or supported by court order or the authority of the personal representative was terminated before execution of the instrument or deed. This section protects a purchaser from or lender to any distributee or subsequent transferee, including a distributee who, as personal representative, executed a deed of distribution in the distributee's own favor. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee are the same person, or whether the authority of the personal representative had terminated before the distribution. Any recorded instrument described in this section on which a state documentary fee is noted is prima facie evidence that such transfer was made for value.
Source: SL 1994, ch 232, § 3-910.
29A-3-911. Partition for purpose of distribution.
When two or more heirs or devisees are entitled to distribution of undivided interests in any real or personal property of the estate, the personal representative or one or more of the heirs or devisees may petition the court prior to the formal or informal closing of the estate, to make partition. After notice to the interested heirs or devisees, the court shall partition the property in the same manner as provided by the law for civil actions of partition. The court may direct the personal representative to sell any property which cannot be partitioned without prejudice to the owners and which cannot conveniently be allotted to any one party.
Source: SL 1994, ch 232, § 3-911.
29A-3-912. Private agreements among successors to decedent binding on personal representative.
Subject to the right of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to the obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts.
Source: SL 1994, ch 232, § 3-912.
29A-3-914. Disposition of unclaimed assets.
If an heir, devisee, or claimant cannot be found, the personal representative shall distribute the share of the missing person to the person's conservator, if any, otherwise the court shall enter an order directing that the share vest in the State of South Dakota for the support of the common schools. The order of court shall contain a provision stating that an action asserting a claim or right to the share may be instituted in the court within ten years after the entry of the order in the manner provided in chapter 21-36. The order of court shall have the same force and effect as a judgment of escheat in an action instituted under chapter 21-36, and shall become final and conclusive at the expiration of the period prescribed by chapter 21-36.
Source: SL 1994, ch 232, § 3-914.
29A-3-915. Distribution to person under disability.
(a) A personal representative may discharge an obligation to distribute the share of a person for whom a conservator has been appointed only by distributing to the conservator. If the personal representative is aware that a proceeding for appointment of a conservator is pending, the personal representative shall delay distribution until the proceeding is decided.
(b) A personal representative may discharge an obligation to distribute the share of a minor not under conservatorship by distributing the share as provided in the decedent's will or in the absence of directions in the will, by distributing the share to:
(1) The minor if married or otherwise emancipated;
(2) A guardian of the minor;
(3) A custodian of the minor as authorized by a uniform gifts or transfers to minors act of any applicable jurisdiction;
(4) A financial institution (as defined in § 29A-6-101) incident to a deposit in an insured savings account or certificate in the sole name of the minor with notice of the deposit to the minor;
(5) Any person responsible for or who has assumed responsibility for the minor's care or custody, provided that the value of the share to be distributed does not exceed $10,000.
(c) A personal representative may discharge an obligation to distribute the share of an adult person not under conservatorship but who the representative in good faith believes lacks capacity to manage his or her property or financial affairs by distributing the share as provided in the decedent's will or, in the absence of directions in the will, by distributing the share to:
(1) An agent under a durable power of attorney who has authority to receive and collect property for the adult person;
(2) A guardian of the adult person;
(3) Any person responsible for or who has assumed responsibility for the adult person's care or custody, provided that the value of the share to be distributed does not exceed $10,000.
(d) The personal representative is not responsible for the proper application of money or property distributed pursuant to this section.
Source: SL 1994, ch 232, § 3-915.
29A-3-916. Apportionment of estate taxes.
(a) For purposes of this section:
(1) "Estate" means the gross estate of a decedent as determined for the purpose of federal estate tax and the estate tax payable to this state;
(2) "Persons" means any individual, partnership, association, joint stock company, corporation, government, political subdivision, governmental agency, or local governmental agency;
(3) "Person interested in the estate" means any person entitled to receive, or who has received, from a decedent or by reason of the death of a decedent any property or interest therein included in the decedent's estate. It includes a personal representative, conservator, and trustee;
(4) "State" means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico;
(5) "Tax" means the federal estate tax and interest and penalties imposed in addition to the tax;
(6) "Fiduciary" means personal representative or trustee.
(b) Except as provided in subsection (i) and, unless the will otherwise provides, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent's will directs a method of apportionment of tax different from the method described in this code, the method described in the will controls.
(c)(1) The court in which venue lies for the administration of the estate of a decedent, on petition for the purpose may determine the apportionment of the tax;
(2) If the court finds that it is inequitable to apportion interest and penalties in the manner provided in subsection (b), because of special circumstances, it may direct apportionment thereof in the manner it finds equitable;
(3) If the court finds that the assessment of penalties and interest assessed in relation to the tax is due to delay caused by the negligence of the fiduciary, the court may charge him with the amount of the assessed penalties and interest;
(4) In any action to recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this code, the determination of the court in respect thereto shall be prima facie correct.
(d)(1) The personal representative or other person in possession of the property of the decedent required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution to the person, the amount of tax attributable to the person's interest. If the property in possession of the personal representative or other person required to pay the tax and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the personal representative or other person required to pay the tax may recover the deficiency from the person interested in the estate. If the property is not in the possession of the personal representative or the other person required to pay the tax, the personal representative or the other person required to pay the tax may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this chapter;
(2) If property held by the personal representative is distributed prior to final apportionment of the tax, the distributee shall provide a bond or other security for the apportionment liability in the form and amount prescribed by the personal representative.
(e)(1) In making an apportionment, allowances shall be made for any exemptions granted, any classification made of persons interested in the estate and for any deductions and credits allowed by the law imposing the tax;
(2) Any exemption or deduction allowed by reason of the relationship of any person to the decedent or by reason of the purposes of the gift inures to the benefit of the person bearing such relationship or receiving the gift; but if an interest is subject to a prior present interest, which is not allowable as a deduction, the tax apportionable against the present interest shall be paid from principal;
(3) Any deduction for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or his estate inures to the proportionate benefit of all persons liable to apportionment;
(4) Any credit for inheritance, succession, or estate taxes or taxes in the nature thereof applicable to property or interests includable in the estate, inures to the benefit of the persons or interests chargeable with the payment thereof to the extent proportionately that the credit reduces the tax;
(5) To the extent that property passing to or in trust for a surviving spouse or any charitable, public, or similar purpose is not an allowable deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property is not included in the computation provided for in subsection (b) hereof, and to that extent no apportionment is made against the property. The sentence immediately preceding does not apply to any case if the result would be to deprive the estate of a deduction otherwise allowable under section 2053(d) of the Internal Revenue Code of 1954, as amended, of the United States, relating to deduction for state death taxes on transfers for public, charitable, or religious uses.
(f) No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder.
(g) Neither the personal representative nor other person required to pay the tax is under any duty to institute any action to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the three months next following final determination of the tax. A personal representative or other person required to pay the tax, who institutes the action within a reasonable time after the three months' period, is not subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectible at a time following the death of the decedent but thereafter became uncollectible. If the personal representative or other person required to pay the tax cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be equitably apportioned among the other persons interested in the estate who are subject to apportionment.
(h) A personal representative acting in another state or a person required to pay the tax domiciled in another state may institute an action in the courts of this state and may recover a proportionate amount of the federal estate tax, of an estate tax payable to another state or of a death duty due by a decedent's estate to another state, from a person interested in the estate who is either domiciled in this state or who owns property in this state subject to attachment or execution. For the purposes of the action the determination of apportionment by the court having jurisdiction of the administration of the decedent's estate in the other state is prima facie correct.
(i) If the liability of persons interested in the estate as prescribed by this section differ from those which result under the Federal Estate Tax Law, the liabilities imposed by the federal law will control and the balance of this section shall apply as if the resulting liabilities had been prescribed herein.
Source: SL 1994, ch 232, § 3-916; SL 1995, ch 167, § 132; SL 2021, ch 34, § 6.
29A-3-1001. Formal proceedings terminating administration--Testate or intestate--Order of general protection.
(a) The administration of an estate being administered in supervised proceedings may be concluded by an order of complete settlement, and the administration of an estate being administered in unsupervised proceedings may be concluded by an order of complete settlement if the court grants a petition therefor. The personal representative may petition for an order of complete settlement after four months from the appointment of the original personal representative, and any other interested person may petition after one year from the appointment of the original personal representative. The petition of the personal representative shall be granted as a matter of course, but other petitions shall be granted only if there is good cause.
(b) The petition shall request the court to approve the account or to compel and approve an accounting, to determine the decedent's testacy status and heirs, if not previously determined by the court or if one or more heirs or devisees were admitted as parties in, or were not given notice of, a previous formal testacy proceeding, and to adjudicate the final settlement and distribution of the estate.
(c) After notice to all interested persons and hearing, and the filing of proof that a copy of the accounting was mailed to the heirs and devisees entitled to distribution of and from the remaining assets of the estate, and to all known creditors and other claimants whose claims are neither paid nor barred, the court may enter the appropriate orders, terminate the personal representative's appointment, and discharge the personal representative from further claims or demands.
(d) Any accounting required under this section may be waived if the persons entitled to a copy consent in writing.
(e) An order of complete settlement shall be conclusive as to the matters determined on all persons given notice, subject only to being reversed, set aside or modified on appeal.
Source: SL 1994, ch 232, § 3-1001; SL 1995, ch 167, § 133.
29A-3-1003. Closing estates--By sworn statement of personal representative.
(a) Unless prohibited by order of the court and except for estates being administered in supervised administration proceedings, a personal representative may close an estate by filing with the court no earlier than four months after the date of original appointment of a general personal representative for the estate, a verified statement stating that the personal representative or a previous personal representative, has:
(1) Determined that the time limit for presentation of creditors' claims has expired or has made a diligent search for the creditors of the estate and affirms to the best of the personal representative's knowledge, information, and belief that all known creditors have been paid in full and if there are other creditors of the decedent, they are unknown to the personal representative and could not, with reasonable diligence, be ascertained;
(2) Determined that all inheritance taxes and state estate taxes due from the estate have been duly determined and are fully paid;
(3) Fully administered the estate of the decedent by making payment, settlement, or other disposition of all claims that were properly presented, expenses of administration and other charges, except as specified in the statement, and that the assets of the estate have been distributed to the persons so entitled. If any claims remain undischarged, the statement shall state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or state in detail other arrangements that have been made to accommodate outstanding liabilities; and
(4) Sent a copy of the statement and a full accounting to all heirs and devisees who are entitled to distribution of and from the remaining assets of the estate and to all known creditors and other claimants whose claims are neither paid nor barred.
(b) If no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.
(c) Any accounting required under this section may be waived if the persons entitled to a copy consent in writing.
Source: SL 1994, ch 232, § 3-1003; SL 1995, ch 167, § 134; SL 2000, ch 138, § 1.
29A-3-1004. Liability of distributees to claimants.
After assets of an estate have been distributed and subject to § 29A-3-1006, an undischarged claim not barred may be prosecuted in a proceeding against one or more distributees. No distributee shall be liable to claimants for amounts received as exempt property, homestead or family allowances, or for amounts in excess of the value of distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of a demand made by a claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted shall lose the right of contribution against other distributees.
Source: SL 1994, ch 232, § 3-1004.
29A-3-1005. Limitations on proceedings against personal representatives.
Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six months after the filing of the closing statement. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate.
Source: SL 1994, ch 232, § 3-1005.
29A-3-1006. Limitations on actions and proceedings against distributees.
Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of a claimant to recover from a distributee who is liable to pay the claim, and the right of an heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or its value from any distributee is forever barred (i) if a claim by a creditor of the decedent, three years after the decedent's death, and (ii) any other claimant and any heir or devisee, at the later of three years after the decedent's death or one year after the time of its distribution. This section does not bar an action to recover property or value received as a result of fraud.
Source: SL 1994, ch 232, § 3-1006.
29A-3-1007. Certificate discharging liens securing fiduciary performance.
After the appointment has terminated, the personal representative, the sureties on the personal representative's bond, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the clerk that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety, but does not preclude action against the personal representative or the surety.
Source: SL 1994, ch 232, § 3-1007; SL 1995, ch 167, § 135.
29A-3-1008. Subsequent administration.
If other property of the estate is discovered after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, the court, upon petition of any interested person and upon notice as it directs, may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the court orders otherwise, the provisions of this code apply as appropriate, but no claim previously barred may be asserted in the subsequent administration.
Source: SL 1994, ch 232, § 3-1008; SL 2002, ch 139, § 1; SL 2008, ch 144, § 1.
29A-3-1101. Effect of approval of agreements involving trusts, inalienable interests, or interests of third persons.
A compromise of any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any governing instrument, the rights or interests in the estate of the decedent, of any successor, or the administration of the estate, if approved in a formal proceeding in the court for that purpose, is binding on all the parties thereto including those unborn, unascertained or who could not be located. An approved compromise is binding even though it may affect a trust or an inalienable interest.
Source: SL 1994, ch 232, § 3-1101.
29A-3-1102. Procedure for securing court approval of compromise.
The procedure for securing court approval of a compromise is as follows:
(1) The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons having beneficial interests or having claims which will or may be affected by the compromise. Parents may act for a minor child if there is no conflict of interest and no guardian or conservator has been appointed. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained.
(2) Any interested person, including the personal representative, if any, or a trustee, may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives.
(3) After notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts, the court, if it finds that an actual contest or controversy exists and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries subject to its jurisdiction to execute the agreement. Minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.
Source: SL 1994, ch 232, § 3-1102.
29A-3-1201. Collection of personal property by affidavit.
(a) Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that:
(1) The value of the entire estate, wherever located, less liens and encumbrances, does not exceed $100,000;
(2) Thirty days have elapsed since the death of the decedent;
(3) No application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;
(4) The decedent has not incurred any indebtedness to the Department of Social Services for medical assistance for nursing home or other medical institutional care; and
(5) The claiming successor is entitled to payment or delivery of the property.
(b) A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (a).
Source: SL 1994, ch 232, § 3-1201; SL 1995, ch 167, § 136; SL 1997, ch 172, § 1; SL 2002, ch 100, § 26; SL 2003, ch 157, § 1; SL 2022, ch 88, § 1.
29A-3-1202. Effect of affidavit.
(a) The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released as if the person had dealt with a personal representative of the decedent, and is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit.
(b) If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered in a proceeding by or on behalf of the persons entitled to receive it upon proof of the facts required to be stated in the affidavit.
(c) Any person to whom payment, delivery, transfer or issuance is made is liable and accountable therefor to any personal representative of the estate or to any other person having a superior right.
(d) Any affiant receiving payment or delivery of personal property under this section shall be responsible for seeing that the property is applied to liens and encumbrances, homestead allowance, exempt property, family allowance, funeral expenses, expenses of administration and creditor claims, as required by law, and that any remaining property is distributed to heirs and devisees entitled thereto.
(e) An affiant submits personally to the jurisdiction of the courts of this state in any proceeding relating to the affidavit that may be instituted by any interested person.
Source: SL 1994, ch 232, § 3-1202; SL 1995, ch 167, § 137.
State of South Dakota ) In Circuit Court
County of ________ ) ss ______________ Judicial Circuit
)
Estate of )
____________________ ) FILE NO.____________
Deceased )
This claim is made against the estate:
Description of Claim Due Date, If Not Yet Due Amount
1._______________________ ____________________ $__________
2._______________________ ____________________ $__________
3._______________________ ____________________ $__________
4._______________________ ____________________ $__________
5._______________________ ____________________ $__________
TOTAL CLAIM $__________
* This claim is unsecured.
* This claim is secured by __________.
* This claim is contingent or unliquidated because __________.
__________.
Dated _______.
__________
Claimant's Signature
__________
Claimant's Name
__________
Claimant's Address
__________
Claimant's Telephone Number
(The following information shall appear on the back of the Statement of Claim form)
How To Use This Form:
1. Filing the Statement of Claim with the clerk of courts and mailing a copy to the personal representative, or
2. Mailing or delivering the Statement of Claim to the personal representative. (A proof of notice should be filed with the clerk if the Statement of Claim is mailed to the personal representative.)
Comments:
Source: SL 1997, ch 348 (Supreme Court Rule 97-43).
29A-3-1203. Succession to real property by affidavit.
Sixty days after the death of a decedent, any person claiming to be a successor to the decedent's interest in real property in this state may file, or cause to be filed on their behalf, an affidavit describing the real property owned by the decedent and the interest of the decedent in the property. A certified or authenticated copy of the decedent's death certificate and the affidavit must be filed with the register of deeds office in all counties where the real property of the decedent is located.
All persons claiming as successors or parties legally acting on their behalf shall sign the affidavit.
The affidavit, which is prima facie evidence of the facts included, must state:
(1) The value of the decedent's interest in all real property located in this state does not exceed fifty thousand dollars. For real estate classified as non-agricultural, the value of the decedent's interest in property may be determined as shown on the assessment rolls for the year in which the decedent died. For real estate classified as agricultural, the value of the decedent's interest shall be the fair market value thereof on the date of the decedent's death;
(2) That sixty days have elapsed since the death of the decedent;
(3) That no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;
(4) That the claiming successor is entitled to the real property because of the homestead allowance under § 29A-2-402, the family allowance under § 29A-2-403, by intestate succession, or by devise under the will of the decedent;
(5) If succession is claimed to be by will, that the affiant has made an investigation and has been unable to determine any subsequent will;
(6) That no one other than a claiming successor has a right to the interest of the decedent in the described property;
(7) Each claiming successor's relationship to the decedent and the value of the entire estate of the decedent;
(8) That the transfer of title is not subject to a transfer fee pursuant to subdivision 43-4-22(18);
(9) The decedent has not incurred any indebtedness to the Department of Social Services for medical assistance for nursing home or other medical institutional care; and
(10) That each person making the affidavit swear or affirm that all statements in the affidavit are true and material and further acknowledge that any false statement may subject the person or persons to criminal penalties.
A successor named in an affidavit under this section has the same protection and liability as a distributee who has received a deed of distribution from a personal representative, as provided in § 29A-3-908, subject to § 29A-3-901.
Any successor named in an affidavit under this section is responsible for seeing that any property received under this section is applied to liens, encumbrances, homestead allowance, exempt property, family allowance, funeral expenses, expenses of administration, and creditor claims.
If an interest in real property transferred under this section is acquired by a purchaser or lender in good faith, for value and without actual notice that the transfer was improper, the purchaser or lender takes title free of any claims of the decedent's estate and incurs no personal liability to the estate, whether or not the transfer was proper. Purchasers and lenders have no duty to inquire whether a transfer was proper.
Nothing in this section affects the rights of a secured creditor or judgment creditor in such property, or prevents any proceeding enforcing any mortgage, pledge, or other liens upon the real property described in the affidavit.
Source: SL 2022, ch 89, § 1.
