LAST WILL AND TESTAMENT

and

TESTAMENTARY TRUST

OF [TESTATOR FULL LEGAL NAME]

[// GUIDANCE: This template is drafted under South Dakota (SD) law and assumes the Testator is a South Dakota domiciliary. Adjust bracketed items and delete guidance comments prior to signing.]

TABLE OF CONTENTS

1. Article I – Preliminary Matters
2. Article II – Family Information & Definitions
3. Article III – Revocation of Prior Instruments
4. Article IV – Appointment of Personal Representative
5. Article V – Payment of Debts, Expenses & Taxes
6. Article VI – Specific Bequests & Devises
7. Article VII – Residuary Disposition & Testamentary Trust
8. Article VIII – Contingent Dispositions
9. Article IX – Guardianship of Minor Children
10. Article X – Fiduciary Powers, Standards & Indemnification
11. Article XI – Administrative & Miscellaneous Provisions
12. Article XII – Governing Law; Forum; Dispute Resolution
13. Article XIII – No-Contest Clause
14. Article XIV – Execution, Attestation & Self-Proving Affidavit

ARTICLE I

PRELIMINARY MATTERS

1.1 Identification. I, [TESTATOR FULL LEGAL NAME], a resident of [COUNTY] County, South Dakota, being of sound mind and over eighteen (18) years of age, hereby declare this instrument to be my Last Will and Testament (the “Will”).

1.2 Effective Date. This Will shall be effective upon its execution on the date set forth in Article XIV.

1.3 Governing Law. This Will and any testamentary trust created herein (the “Trust”) shall be construed and governed in accordance with the probate and trust laws of the State of South Dakota, including S.D. Codified Laws Title 29A (South Dakota Uniform Probate Code) and Title 55 (Fiduciaries & Trusts), as amended (collectively, “State Law”).

ARTICLE II

FAMILY INFORMATION & DEFINITIONS

2.1 Family Information.
(a) Spouse. My spouse is [SPOUSE NAME] (“Spouse”).
(b) Children. My children are [CHILD NAME 1], [CHILD NAME 2], and any child hereafter born to or adopted by me (collectively, the “Children”).

2.2 Definitions. Capitalized terms have the following meanings (alphabetically):
“Beneficiaries” – Persons or entities entitled to receive distributions under this Will or the Trust.
“Personal Representative” – The executor/administrator of my estate appointed in Article IV.
“Per Stirpes” – Distribution to descendants by right of representation as defined under State Law.
“Primary Trustee” – The individual or institution named in §7.3(a).
“Trust Estate” – All property held from time to time by the Trustee under Article VII.
[// GUIDANCE: Add or delete defined terms to match customized provisions.]

ARTICLE III

REVOCATION OF PRIOR INSTRUMENTS

3.1 Revocation. I hereby revoke all prior wills, codicils, and testamentary dispositions previously made by me.

ARTICLE IV

APPOINTMENT OF PERSONAL REPRESENTATIVE

4.1 Primary Appointment. I nominate [PRIMARY PERSONAL REPRESENTATIVE NAME], of [CITY, STATE], to serve as Personal Representative.

4.2 Successor Appointment. If the Primary Personal Representative fails or ceases to serve, I nominate [SUCCESSOR PERSONAL REPRESENTATIVE NAME] as successor.

4.3 Bond. No Personal Representative shall be required to post bond unless a court of competent jurisdiction so orders.

4.4 Powers. The Personal Representative shall have all powers granted by State Law, including those under S.D. Codified Laws § 29A-3-715, together with any additional powers set forth in Article X.

ARTICLE V

PAYMENT OF DEBTS, EXPENSES & TAXES

5.1 Directions. My Personal Representative shall pay from my residuary estate:
(a) all legally enforceable debts and funeral expenses;
(b) last illness expenses; and
(c) all estate, inheritance, and other transfer taxes (without apportionment), unless otherwise directed herein or by applicable tax elections.

ARTICLE VI

SPECIFIC BEQUESTS & DEVISES

6.1 Tangible Personal Property. I give all items of tangible personal property listed in any separate writing executed in compliance with S.D. Codified Laws § 29A-2-513 to the beneficiaries designated therein.

6.2 Other Specific Gifts. [INSERT any specific monetary or property bequests, e.g., “I give $10,000 to [CHARITY NAME], a South Dakota nonprofit corporation.”]

6.3 Lapse Protection. Unless specifically addressed, any gift that lapses shall pass to the Residuary Estate.

ARTICLE VII

RESIDUARY DISPOSITION & TESTAMENTARY TRUST

7.1 Pour-Over to Trust. I devise and bequeath the remainder of my probate estate (the “Residuary Estate”) to the Trustee to hold, administer, and distribute in accordance with this Article VII.

7.2 Name of Trust. The trust established herein shall be known as the [TESTATOR LAST NAME] Family Testamentary Trust (the “Trust”).

7.3 Trustees.
(a) Primary Trustee. I appoint [PRIMARY TRUSTEE NAME] as Primary Trustee.
(b) Alternate Trustee(s). If the Primary Trustee fails or ceases to serve, [ALTERNATE TRUSTEE NAME] shall serve. Further alternates may be designated by written instrument executed in the same manner as this Will.

7.4 Beneficiaries & Distribution Standards.
(a) Income & Principal. The Trustee shall pay or apply so much of the net income and principal of the Trust Estate as the Trustee, in the Trustee’s sole and absolute discretion, determines necessary or advisable for the health, education, maintenance, and support (“HEMS”) of the Beneficiaries.
(b) Mandatory Termination. The Trust shall terminate upon the earliest of:
(i) the youngest living Child attaining age [AGE, e.g., 30];
(ii) the death of all Children; or
(iii) thirty-five (35) years from the date of my death, subject to S.D. Codified Laws § 55-2-4 (Rule Against Perpetuities).
Upon termination, the remaining Trust Estate shall be distributed per stirpes to the then-living descendants of the Children; if none, to my heirs-at-law.

7.5 Spendthrift Provision. The interests of Beneficiaries are not subject to voluntary or involuntary transfer, assignment, or attachment, consistent with S.D. Codified Laws § 55-1-35.

7.6 Trustee Powers. In addition to powers granted by State Law, the Trustee may, without court approval:
(a) retain, manage, invest, and reinvest Trust assets;
(b) employ professionals and delegate authority;
(c) distribute in cash or in kind and allocate receipts between income and principal;
(d) make tax elections; and
(e) exercise all powers listed in S.D. Codified Laws § 55-1-6.

7.7 Fiduciary Standards. The Trustee shall act as a prudent person familiar with the purposes of the Trust, taking into account the objectives of protecting and growing Trust assets for Beneficiaries.

7.8 Trustee Indemnification & Liability Cap.
(a) Indemnification. To the fullest extent permitted by State Law, the Trust Estate shall indemnify the Trustee from and against any and all claims, liabilities, and expenses arising out of the administration of the Trust, except for losses resulting from the Trustee’s willful misconduct or gross negligence.
(b) Liability Cap. Any liability of the Trustee shall be limited to and payable solely from the Trust Estate; no trustee shall be personally liable beyond the assets held in trust.

7.9 Removal & Replacement. [OPTIONAL – Include mechanisms for beneficiary-led or protector-led removal.]

ARTICLE VIII

CONTINGENT DISPOSITIONS

8.1 Common Disaster. If my Spouse and I die under circumstances rendering the order of death uncertain, I shall be deemed to have survived my Spouse.

8.2 Failure of Beneficiaries. If no named Beneficiary survives to receive any portion of my estate, property shall pass to my heirs-at-law determined under State Law as of the date of my death.

ARTICLE IX

GUARDIANSHIP OF MINOR CHILDREN

9.1 Nomination. I nominate [PRIMARY GUARDIAN NAME] as guardian of the person and estate of each minor Child. If [PRIMARY GUARDIAN NAME] fails to serve, I nominate [ALTERNATE GUARDIAN NAME].

[// GUIDANCE: South Dakota courts have final authority over guardianship appointments but give substantial weight to the Testator’s nomination.]

ARTICLE X

FIDUCIARY POWERS, STANDARDS & INDEMNIFICATION

10.1 Incorporation of Statutory Powers. All fiduciaries shall have the powers enumerated in S.D. Codified Laws §§ 29A-3-715 and 55-1-6, as applicable.

10.2 Reliance on Advice. Fiduciaries may rely in good faith on professional advice and shall be protected against liability for such reliance.

10.3 Compensation. Fiduciaries shall be entitled to reasonable compensation and reimbursement of expenses.

10.4 Exculpation & Indemnity. Except for willful misconduct or gross negligence, fiduciaries shall be exculpated from liability and indemnified from the Residuary Estate or Trust Estate, as applicable, consistent with §7.8.

ARTICLE XI

ADMINISTRATIVE & MISCELLANEOUS PROVISIONS

11.1 Digital Assets. My Personal Representative and Trustee may access, manage, and distribute my digital assets in accordance with the Revised Uniform Fiduciary Access to Digital Assets Act as adopted by South Dakota (S.D. Codified Laws ch. 29A-15).

11.2 Survival Requirement. Any Beneficiary must survive me by 120 hours to take under this Will, per S.D. Codified Laws § 29A-2-104.

11.3 Simultaneous Signing. Original counterparts of this Will executed on the same date shall constitute one instrument.

ARTICLE XII

GOVERNING LAW; FORUM; DISPUTE RESOLUTION

12.1 Governing Law. All matters arising under this Will and the Trust shall be governed by State Law, without regard to conflict-of-laws principles.

12.2 Exclusive Forum. The [COUNTY] County Probate Court of the State of South Dakota shall have exclusive jurisdiction over estate and trust administration proceedings.

12.3 Arbitration. Arbitration is not applicable to probate and trust matters under this instrument.

12.4 Jury Waiver. To the extent a jury trial might otherwise apply, it is waived pursuant to statutory probate practice (“no_jury_probate”).

12.5 Injunctive Relief. The court may grant temporary, preliminary, and permanent injunctive relief necessary to enforce the Trust.

ARTICLE XIII

NO-CONTEST CLAUSE

13.1 Forfeiture. If any Beneficiary contests this Will or the Trust (except to enforce rights clearly granted herein), that Beneficiary’s interest shall lapse and pass as though the Beneficiary had predeceased me.

[// GUIDANCE: South Dakota enforces in terrorem clauses subject to good-faith exception; see S.D. Codified Laws § 29A-2-517.]

ARTICLE XIV

EXECUTION, ATTESTATION & SELF-PROVING AFFIDAVIT

IN WITNESS WHEREOF, I, [TESTATOR FULL LEGAL NAME], have signed this Last Will and Testament on this ___ day of _, 20.

[TESTATOR FULL LEGAL NAME], Testator

ATTESTATION

We, the undersigned witnesses, declare that on the date written above, the Testator, who declared this instrument to be his/her Last Will and Testament, signed it in our presence, or acknowledged his/her signature, and that we, in the Testator’s presence and in the presence of each other, have signed our names as witnesses.

Witness 1: ____ Address: ______

Witness 2: ____ Address: ______

[// GUIDANCE: South Dakota requires two competent witnesses. Citation: S.D. Codified Laws § 29A-2-502.]

SELF-PROVING AFFIDAVIT (OPTIONAL)

State of South Dakota
County of [COUNTY]

Subscribed, sworn to, and acknowledged before me by [TESTATOR], the Testator, and sworn to and subscribed before me by [WITNESS 1] and [WITNESS 2], witnesses, this ___ day of _, 20.

Notary Public

My Commission Expires: _______

[// GUIDANCE: Self-proving affidavit authorized under S.D. Codified Laws § 29A-2-504.]

SIGNATURE PAGE FOR TRUSTEE ACCEPTANCE (OPTIONAL)

The undersigned hereby accepts appointment as Trustee under Article VII of the foregoing Will and agrees to administer the Trust in accordance with its terms and State Law.

[PRIMARY TRUSTEE NAME], Trustee
Date: _______

[// GUIDANCE:
1. Remove optional provisions if not used.
2. Review tax-sensitive clauses with counsel to ensure desired estate, GST, and income tax treatment.
3. Confirm compliance with any client-specific directions or marital property agreements.
4. Execute originals in strict conformity with South Dakota statutory formalities.
]