What is a pet trust?
A pet trust is a legal arrangement in which a person sets aside money or property to be held in trust and managed by a trustee to take care of pets. A pet trust is authorized by South Dakota law under the its highly sophisticated state trust laws, specifically under Chapter 55 of South Dakota law. A person is authorized to create a trust for the care of a designated animal. A person should consult our offices if they are interested in how to adequately provide for their beloved pets in the event of their demise or disability.
What is ‘Probate’ and how does it work in South Dakota?
In South Dakota, probate is the process by which a “personal representative” or “administrator” is appointed and given authority from the Court to wind up a deceased person’s affairs. The personal representative can be named in a person’s will, otherwise a person can petition a court and ask to be appointed as an administrator. In the probate process, the estate, the assets, and the debts of the deceased person are accounted for, inventoried, and filed with the court. The personal representative then pays the creditors according to their legal priority, and distributes the remaining assets. The personal representative will distribute assets in accordance with the will of the deceased person, but if the deceased died without a will, “intestate,” then his or her assets will be distributed by the court appointed “administrator” in accordance with the laws prescribed by the South Dakota legislature.
What is the difference between a “Will” and a “Living Will”?
A will is a document that governs your affairs upon your death. It will appoint the person responsible for winding up your affairs, it will designate who will receive your property, designate people to care for minor children or other dependents, give instructions about your debts, and set forth any conditions upon receiving property from your estate, among other things. A will only becomes effective once a person is deceased. A living will, on the other hand, operates while you are alive. A living will, sometimes called a healthcare directive, provides instructions for healthcare providers, and/or your healthcare power of attorney, on how you wish to receive medical care in the event you are incapable of communicating your wishes. I would always advise that the language in a healthcare directive, or living will, should be carefully drafted by an attorney and you should meet with your attorney to discuss exactly what you want to happen in the event you are incapacitated, in a coma, or the like. A living will has no effect after your death.
Do I need a will?
There are many advantages to having a will even if you do not own much property. A will saves time, expense, and confusion for your loved ones, and helps them wind up your affairs. A will can direct who you want to look after minor children, and can give specific, legally enforceable instructions regarding certain items of sentimental value. When a person passes away without a will, the likelihood for family disputes increases. A good will should be drafted by a professional who takes the time to evaluate your unique family situation, and it should give clear instruction of your wishes. Some people choose to have wills drafted by websites or software, claiming that the documents are “accepted” by the local courts. Simply being accepted does not mean the will was drafted under competent legal advice by somebody licensed to provide legal advice. Many of these “boilerplate” wills have provisions or clauses in them that a local attorney would strongly advise against.
What is a “living trust” and can I use it to “avoid probate?”
A living trust is often the term used for a revocable trust, in which a person creates a trust to place their property in during their life. The legal title to the person’s property, such as cars, houses, and even personal property then belongs to the trust (if done properly). Probate can be avoided if the trust is drafted and executed properly, and the items are effectively transferred to the trust. However, a person may not want to “avoid” probate. Probate permits court appointment of a living person to act on behalf of the deceased with regards to banks, creditors, insurance companies, and many other institutions without much hassle.
What is a Power of Attorney?
A Power of Attorney or POA typically refers to a written document that gives powers to another person to act on your behalf. They can be limited, such as authorizing somebody to act as your agent on a sale or business transaction, or they can be general, authorizing the selected person to handle any matter which you would be able to do so yourself. If you execute your POA while you are still competent, if drafted properly, it will survive any disability or incompetency and allow a trusted family member or friend to assist you in the event you cannot care for yourself.
Wills, Trusts, and Probate
Wills and trusts are useful areas of estate planning. Too few Americans do not have a proper plan in place for when they pass away, leaving confusion and potential for dispute behind for their family members. It is never too soon to make a will or have your current estate plan evaluated by a professional.
Frequently Asked Questions
427 N. Minnesota Ave, Suite 101
Sioux Falls, SD 57104
P: 605.332.6803 • F: 605.332.3692
Contact Our Team of Legal Experts
- Powers of Attorney
- Healthcare Directives and Living Wills
- Pet Trusts
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