How to Create a Living Trust in South Dakota

A living trust can help you establish a solid estate plan and protect your assets after your death. Every state has different estate and inheritance laws, but this guide will take a closer look at how to form a living trust in South Dakota, as well as whether you even need one. Whether it’s investing, retirement planning or estate planning goals you have, a financial advisor can help. SmartAsset’s free financial advisor matching tool can pair you with advisors who serve your area.

Forming a living trust in The Mount Rushmore State requires a number of steps. Here’s what you’ll need to do:

Choose the trust that best suits your financial situation: You’ll want to use an individual trust if you’re single, but you should consider using a joint trust if you’re married. With a joint trust, each spouse can include separate and shared property in the trust. Married couples can also use two individual trusts.
Take inventory of your property: This will help you determine exactly what you want the contents of your trust to be. Examples include real estate, stocks, retirement accounts, heirlooms and bank accounts.
Choose a trustee to manage your trust: If you decide to act as the trustee, you’ll have to select a successor trustee to manage your estate after your incapacitation or death.
Create the trust document: You can use an online program to do this, or you can hire an estate planning attorney.
Get the trust document notarized: Next you’ll need to sign the trust in front of a notary public.
Transfer property into the trust to fund it: This requires paperwork, but it ensures that your trustee can successfully distribute your assets to the beneficiaries you’ve chosen.

What Is a Living Trust?

A living trust is a legal arrangement that lets you transfer control of your estate to a trustee, who then distributes your property to any beneficiaries you’ve named. The trust goes into effect as soon as you create it, and it gives you the authority to decide at what age or date your beneficiaries will receive your assets.

There are also two types of living trusts. These are revocable living trusts and irrevocable living trusts. Revocable trusts allow the trust creator, or grantor, to modify or revoke the provisions in the trust without the approval of the trust’s beneficiaries. Irrevocable trusts cannot be altered or terminated by the grantor unless all of the beneficiaries approve.

How Much Does It Cost to Create a Living Trust in South Dakota?

You’ll have a couple of options for creating a living trust in South Dakota, but the method you choose will affect how much you spend. If you’d rather create the trust yourself, you’ll spend up to a few hundred dollars, but DIY estate planning also presents some risks.

The other option is to hire an attorney who specializes in living trusts. This method is more expensive, and you may spend at least $1,000 depending on your attorney’s fees. This could be the safer route if you’re not comfortable with creating the trust document on your own.

Why Get a Living Trust in South Dakota?

People often use living trusts to avoid probate. Probate is a process where court officials approve a will’s provisions. The probate process can be expensive and take many months, but South Dakota uses something called the Uniform Probate Code. This code simplifies the probate process, allowing you to save time and money. Additionally, South Dakota offers an even simpler probate process for those with estates smaller than $50,000.

South Dakota also has a law regarding the spouse of a deceased person. The law gives the surviving spouse the “right of election” to take a certain percentage of the decedent’s estate, even if the spouse isn’t a beneficiary. The surviving spouse has either nine months following the decedent’s death or four months after their will is in probate to claim their elective share.

Who Should Get a Living Trust in South Dakota?

You don’t need to have the largest estate to create a living trust. If you’d prefer this over the probate process, you might not save as much money, and some of your assets would still be subject to South Dakota’s right of election.

You should also consider using the probate process. South Dakota’s Uniform Probate Code greatly streamlines the process, and it’ll be even easier for those with estates under $50,000.

Living Trusts vs. Wills

Even if you’ve already formed a living trust, you can still benefit from incorporating a will into your estate plan. If there are any assets you didn’t include in your trust, you can assign them to a will. This gives you more flexibility with distributing your assets after death. Wills also allow you to perform actions that trusts cannot. These include:

Naming an executor
Leaving instructions for taxes and debt
Establishing guardianship for minors
Choosing managers for children’s property

The following chart highlights some similarities and differences between a living trust and a will:

Living Trusts vs. Wills

Purpose	Living Trusts	Wills
Names a property beneficiary	Yes	Yes
Allows revisions to be made	Depends on type	Yes
Avoids probate court	Yes	No
Requires a notary	Yes	No
Names guardians for children	No	Yes
Names an executor	No	Yes
Requires witnesses	No	Yes

Living Trusts and Taxes in South Dakota

Taxes generally won’t affect your living trust, but you should still take note of South Dakota’s estate tax and inheritance laws. Thankfully, South Dakota doesn’t have an inheritance or estate tax. However, for 2022, the federal estate tax applies to estates worth more than $12.06 million for individuals and $24.12 million for married couples.

If your estate comes in smaller than the marks above, it won’t owe anything to the federal government. But should your estate exceed the federal threshold, you’ll have to pay estate taxes even if you don’t use a living trust.

Bottom Line

South Dakota uses the Uniform Probate Code, so it may be better to use the probate process instead of a living trust. If you prefer a living trust, an attorney can help you create the document, although hiring an attorney will cost more than doing it yourself. No matter which route you take for estate planning, remember that South Dakota grants a surviving spouse the right of election. Whether you decide to use a living trust or a will, your spouse will inherit a percentage of your assets following your death.

Estate Planning Tips

Creating an estate plan doesn’t have to be difficult. A financial advisor can help you establish a strategy to meet your goals. Finding a qualified financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
Budgeting is one way to preserve your property and assets throughout your life and after death. This can help you save money, while taking care of any regular expenses you have. If you’re not sure where to begin, consider using our budget calculator.