Frequently Asked Questions
What are the basic parts of an estate plan?
At a minimum, an estate plan will include a last will and testament, a financial power of attorney, a health care power of attorney, and a living will, although many clients have specific needs that require more complex planning.
What is a Financial Power of Attorney?
A financial power of attorney allows a designated person (your agent) to access your financial accounts and to make financial decisions on your behalf if you are incapacitated.
What is a Health Care Power of Attorney?
A healthcare power of attorney allows a designated person (your agent) to gain access to your medical information and to make healthcare decisions on your behalf if you are incapacitated.
What is a Living Will?
A living will states the type of medical care you desire to receive if you are incapacitated and your death is imminent.
What is a Last Will and Testament?
A last will and testament is a document that designates who will administer your estate (your personal representative), who will care for your minor children if you are deceased (your children’s guardian and conservator), and who will receive your remaining assets (your beneficiaries).
Should I have a last will and testament?
Yes! States have basic intestacy statutes that govern what happens to a decedent’s property if he or she dies without a will. If you desire to vary from these default provisions in any way, then you must have a will. Besides, a will affords you great flexibility to appoint your own personal representative, the guardian and conservator of minor children, and who will receive your property—none of which happens without a last will and testament.
What happens if I do not have a health care or financial power of attorney?
At a minimum, a lack of either a health care or financial power of attorney will cause confusion and delay. The lack of these documents may also prevent your loved ones from acting on your behalf and thus forcing court intervention to grant someone such authority.
What is probate?
Probate is a process whereby the state/court is notified of your death, your assets are collected, debts paid, and the remainder is distributed either according to your will or by the state’s intestacy laws.
Must I have a probate if I have a will?
Yes. Probate is a process of administering your estate, whether you have a will or not. There are means to avoid probate, however, which should be explored when meeting with your estate planner.
Do my debts carry over to my beneficiaries?
No, unless your beneficiary was also a co-debtor. Keep in mind, however, that an estate must pay a decedent’s debts to the extent that assets are available. Thus, a decedent’s debts can significantly reduce or eliminate any inheritance a beneficiary might have otherwise received.
How long is the probate process?
In South Dakota, a probate must remain open for a minimum of 120 days. It is not uncommon, however, for a probate to extend up to a year or more.