Complex Will with Trust - South Dakota

LAST WILL AND TESTAMENT

and Testamentary Trust of [TESTATOR FULL LEGAL NAME]

TABLE OF CONTENTS

1. Declaration and Family Information
2. Definitions
3. Personal Representative, Trustee, and Guardian Nomination
4. Expenses, Taxes, and Gifts
5. Residuary Estate and Testamentary Trust
6. Trustee Administration
7. Digital Assets
8. Remedies and Liability Standards
9. Governing Law, Court, Arbitration, and Jury Rights
10. No-Contest Options and General Provisions
11. Execution, Attestation, and Self-Proof

1. DECLARATION AND FAMILY INFORMATION

I, [TESTATOR FULL LEGAL NAME], residing at [ADDRESS], County of [COUNTY], South Dakota, declare this instrument to be my Last Will and Testament. I am at least eighteen years old and of sound mind as required by SDCL § 29A-2-501.

I revoke all prior wills and codicils. Revocation of a South Dakota will is governed by SDCL § 29A-2-507.

My marital status is [MARRIED / UNMARRIED / WIDOWED / DIVORCED]. My spouse, if any, is [SPOUSE NAME]. The persons I intend to identify as my descendants are [NAMES AND RELATIONSHIPS].

2. DEFINITIONS

“Beneficiary” means a person or organization entitled to receive property under this Will or the Trust.

“Descendants by representation” means distribution by representation under applicable South Dakota law.

“Personal Representative” means the executor appointed after nomination under Article 3.

“Residue” means all property subject to disposition by this Will that is not otherwise effectively disposed of, after payment or reservation for proper estate charges.

“Trust” means the testamentary trust created in Article 5.

“Trustee” means each initial, successor, or additional trustee serving under Article 6.

3. PERSONAL REPRESENTATIVE, TRUSTEE, AND GUARDIAN NOMINATION

3.1 Personal Representative

I nominate [PRIMARY PERSONAL REPRESENTATIVE NAME AND ADDRESS] as Personal Representative. If that person does not qualify or ceases to serve, I nominate [SUCCESSOR NAME AND ADDRESS].

The Personal Representative shall perform the fiduciary duties in SDCL § 29A-3-703 and may exercise the estate-administration powers in § 29A-3-715, subject to this Will, applicable law, and court orders.

3.2 Bond

I request that the Personal Representative serve without bond. Under SDCL § 29A-3-603, a bond is not required unless the court concludes that a bond is in the Estate's best interests.

3.3 Trustee and Successors

I appoint [PRIMARY TRUSTEE NAME AND ADDRESS] as initial Trustee. If that person rejects the trusteeship, cannot serve, or ceases to serve, I appoint [SUCCESSOR TRUSTEE NAME AND ADDRESS].

If no named successor can serve, a court may fill the vacancy as provided by SDCL § 55-3-20. Trustee removal is governed by §§ 55-3-20 and 55-3-20.1; this Will creates no beneficiary-majority self-help removal power or mandatory cure period that delays statutory relief.

3.4 Guardian or Conservator Nomination

If an unmarried minor child of mine requires a guardian or conservator after my death, I nominate [PRIMARY NOMINEE NAME] and, if that person cannot serve, [ALTERNATE NOMINEE NAME].

Under SDCL § 29A-5-202, this is a nomination rather than a self-executing appointment. The court may appoint a parental nominee if both parents are dead, the nominee is eligible, and the appointment would serve the minor's best interests. An effective nomination by a minor age fourteen or older and a prior court appointment remain subject to that statute.

4. EXPENSES, TAXES, AND GIFTS

4.1 Expenses and Claims

The Personal Representative shall pay or reserve for legally enforceable debts, reasonable funeral and burial expenses, administration expenses, and other proper charges against the Estate. This direction does not validate a barred or unenforceable claim or alter a statutory priority.

For Estate litigation, expense and attorney-fee reimbursement is governed by SDCL § 29A-3-720.

4.2 Taxes

Complete one after review by South Dakota and federal tax counsel:

☐ Death taxes attributable to property passing under this Will or otherwise shall be paid from the Residue without apportionment, to the extent this direction is enforceable.

☐ Death taxes shall be apportioned as follows: [INSERT EXPRESS METHOD].

4.3 Specific Gifts

I make the following specific gifts:

1. [DESCRIPTION OR AMOUNT] to [BENEFICIARY].
2. [DESCRIPTION OR AMOUNT] to [BENEFICIARY].
3. [DESCRIPTION OR AMOUNT] to [BENEFICIARY].

4.4 Tangible-Personal-Property List

I may leave a separate signed statement or list disposing of tangible personal property under SDCL § 29A-2-513. The list may not dispose of money and must describe the items and devisees with reasonable certainty.

4.5 Failed Gifts and Anti-Lapse

Unless this Will expressly provides otherwise, the anti-lapse rule in SDCL § 29A-2-603 applies to a qualifying devisee who leaves descendants surviving me. That section does not govern a future interest in Trust, which is addressed by § 29A-2-707.

For each material gift, confirm the intended substitute taker: [DESCENDANTS BY REPRESENTATION / NAMED ALTERNATE / RESIDUE].

5. RESIDUARY ESTATE AND TESTAMENTARY TRUST

I give the Residue to the Trustee, IN TRUST, to administer and distribute under this Will. This written Will identifies the Trust's intent, property, purpose, and beneficiaries for purposes of SDCL § 55-1-4. The Trustee's acceptance is governed by § 55-3-2.

5.1 Name and Beneficiaries

The Trust shall be known as “The [TESTATOR SURNAME] Testamentary Trust.” Its beneficiaries are [IDENTIFY BENEFICIARIES OR DEFINITE CLASS].

5.2 Separate Shares and Distributions

The Trustee shall establish a separate share for each [BENEFICIARY / BRANCH OF DESCENDANTS].

Before final distribution, the Trustee may distribute income or principal for a beneficiary's health, education, maintenance, and support after considering [OTHER RESOURCES / DO NOT CONSIDER OTHER RESOURCES].

Each beneficiary shall receive:

• [PERCENTAGE] at age [AGE];
• [PERCENTAGE OF REMAINDER] at age [AGE]; and
• the balance at age [AGE].

If a beneficiary dies before complete distribution, the remaining share shall pass under [THE SUBSTITUTE-DESCENDANT RULE / NAMED ALTERNATE DISPOSITION]. Review SDCL § 29A-2-707 when drafting the final disposition.

South Dakota does not apply the common-law rule against perpetuities. SDCL § 43-5-8. The distribution schedule above, rather than the former draft's incorrect citation to § 55-2-4, controls the intended duration.

5.3 Spendthrift Provision

Each beneficiary's interest shall be held subject to a spendthrift trust to the maximum extent permitted by SDCL § 55-1-35.

6. TRUSTEE ADMINISTRATION

6.1 Duties and Investment Standard

The Trustee shall use at least ordinary care and diligence as required by SDCL § 55-3-10. Investments shall satisfy the prudent-investor, portfolio, and diversification standards in §§ 55-5-6 to 55-5-8, subject to any enforceable alteration in this Will.

6.2 Powers

Unless this Will specifically excludes a power, the statutory powers in SDCL chapter 55-1A apply to this testamentary Trust under § 55-1A-1. Subject to fiduciary duties and court orders, the Trustee may:

1. retain, acquire, sell, exchange, lease, improve, or encumber Trust property;
2. borrow money and pledge Trust assets;
3. insure Trust property and administration-related liability;
4. pay taxes, compensation, and administration expenses;
5. make distributions in cash or in kind;
6. employ attorneys, accountants, investment advisers, and other agents;
7. prosecute or defend proceedings and settle claims;
8. continue or participate in a business when prudent; and
9. execute instruments necessary or appropriate to administer the Trust.

6.3 Information and Reports

The Trustee shall maintain complete records and provide a written report at least annually to each adult current beneficiary and to [OTHER RECIPIENTS]. The report shall identify Trust property, material receipts and disbursements, liabilities, and Trustee compensation.

6.4 Compensation and Reimbursement

If this Will does not specify compensation, the Trustee is entitled to reasonable compensation under SDCL § 55-3-14. Reimbursement is governed by § 55-3-13. This Will creates no blanket indemnity for breach of fiduciary duty.

6.5 Small-Trust Termination

Except as otherwise provided by this Will, the Trustee may terminate a noncharitable Trust valued below $150,000 under SDCL § 55-3-27 and shall distribute the property in accordance with my probable intention. The court retains the modification, termination, and new-trustee authority stated in that section.

7. DIGITAL ASSETS

Under SDCL § 55-19-4, I expressly consent to disclosure to my Personal Representative of the content of my electronic communications and my other digital assets. The Personal Representative may request disclosure under §§ 55-19-7 and 55-19-8 and may exercise authority only within the duties and limits in §§ 55-19-16 to 55-19-20 and other applicable law.

I also consent to disclosure to the Trustee of electronic-communication content held in an account of the Trust when SDCL § 55-19-12 applies.

A qualifying online-tool direction overrides a contrary direction in this Will to the extent provided by SDCL § 55-19-4.

8. REMEDIES AND LIABILITY STANDARDS

8.1 Personal Representative

An improper exercise of Estate power may constitute a breach of fiduciary duty under SDCL § 29A-3-712. This Will creates no blanket limitation of a Personal Representative's liability to Estate assets.

8.2 Trustee Contracts and Torts

Trustee contract liability is governed by SDCL § 55-4-21, including its rule that “trustee” or “as trustee” after the signature is prima facie evidence of intent to exclude personal liability.

Trustee exoneration or reimbursement for administration-related tort liability is governed by SDCL § 55-4-22. Personal tort liability remains subject to § 55-4-28. This Will creates no blanket limitation of Trustee liability to Trust assets.

8.3 Beneficiary Consent, Release, or Ratification

Any beneficiary consent, release, or ratification is governed by SDCL § 55-4-31, including its improper-conduct and informed-knowledge exceptions. This Will does not grant a prospective blanket release of fiduciary duties.

9. GOVERNING LAW, COURT, ARBITRATION, AND JURY RIGHTS

9.1 Governing Law

South Dakota law governs this Will and the Trust while South Dakota is the applicable jurisdiction.

9.2 Estate and Trust Proceedings

Estate venue is governed by SDCL § 29A-3-201. Trust proceedings are governed by chapter 21-22 when its scope provision, § 21-22-2, applies. County filing for a court trust is addressed by § 21-22-5, and a Trustee may register a South Dakota-administered Trust as provided by § 55-1-56.

South Dakota uses its circuit courts for probate and trust proceedings. This Will does not select an exclusive county or restrict transfer, registration, or another statutory venue rule.

9.3 Trust Arbitration

Complete one after attorney review:

☐ This Will does not require arbitration.

☐ A dispute between or among beneficiaries and fiduciaries concerning the Trust shall be arbitrated under [RULES AND PROCEDURE] to the extent enforceable under SDCL § 55-1-54 and chapter 21-25A.

Under SDCL § 55-1-54, a Trust provision requiring arbitration is enforceable, but a challenge to the validity of all or part of the Trust is not subject to arbitration. The Trustee also has the claim-settlement and arbitration power in § 55-1A-25.

9.4 Jury Rights

This Will does not waive a jury right that otherwise exists. Under SDCL § 29A-1-306(a), a party who duly demands a jury is entitled to one in a formal testacy proceeding and in another proceeding involving a controverted fact for which a constitutional jury right exists. An advisory jury is governed by § 29A-1-306(b).

10. NO-CONTEST OPTIONS AND GENERAL PROVISIONS

10.1 Optional Will No-Contest Provision

Complete one after attorney review:

☐ No no-contest provision governing this Will is included.

☐ Include the following reviewed provision and alternate disposition: [INSERT TERMS].

A Will penalty clause is unenforceable when probable cause exists for instituting the proceeding, as provided by SDCL § 29A-2-517.

10.2 Optional Trust No-Contest Provision

☐ No no-contest provision governing the Trust is included.

☐ Include the following reviewed provision and alternate disposition: [INSERT TERMS].

Trust no-contest clauses are governed by SDCL §§ 55-1-46 to 55-1-51, including probable-cause and other statutory exceptions.

10.3 Survivorship and Common Disaster

Under SDCL § 29A-2-702, a beneficiary generally must survive the relevant event by 120 hours for purposes of this Will, unless an exception in subsection (d) applies.

Complete one common-disaster direction after tax and estate-planning review:

☐ Apply the default statutory rule without an additional common-disaster direction.

☐ If my spouse and I die in a common disaster and the order of death cannot be established, deem [ME / MY SPOUSE] to have survived the other.

10.4 Severability

If a provision is held invalid, the remaining provisions continue to the extent they can operate consistently with my plan and applicable law.

10.5 Headings and Construction

Headings are for convenience only. Words used in the singular include the plural when appropriate, and a fiduciary designation includes a properly appointed successor.

11. EXECUTION, ATTESTATION, AND SELF-PROOF

11.1 Execution Requirements

This form uses the witnessed-will procedure in SDCL § 29A-2-502(b): the Will must be in writing, signed by the Testator or in the Testator's name by another individual in the Testator's conscious presence and at the Testator's direction, and signed in the Testator's conscious presence by at least two individuals who witnessed the signing or the Testator's acknowledgment of the signature.

11.2 Testator Signature

I, [TESTATOR FULL LEGAL NAME], sign this instrument as my Last Will and Testament willingly and as my free and voluntary act.

Signed on [__/__/____] at [CITY], South Dakota.

_______________________________________

[TESTATOR FULL LEGAL NAME], Testator

11.3 Witness Attestation

Each undersigned witness signs in the conscious presence of the Testator after witnessing the Testator's signing or acknowledgment of the signature.

11.4 Simultaneous Self-Proving Form

SDCL § 29A-2-504(a) permits simultaneous execution, attestation, and self-proof through the Testator's acknowledgment and both witnesses' affidavits before an officer authorized to administer oaths, evidenced by the officer's certificate under official seal. The statute requires substantially the following declarations:

I, [TESTATOR NAME], the testator, sign my name to this instrument this [DAY] day of [MONTH], [YEAR], and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.

We, [WITNESS 1 NAME] and [WITNESS 2 NAME], the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his or her will and that he or she signs it willingly (or willingly directs another to sign for him or her), that he or she executes it as his or her free and voluntary act for the purposes therein expressed, and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.

STATE OF SOUTH DAKOTA
COUNTY OF [COUNTY]

Subscribed, sworn to, and acknowledged before me by [TESTATOR NAME], the Testator, and subscribed and sworn to before me by [WITNESS 1 NAME] and [WITNESS 2 NAME], witnesses, on [__/__/____].

_______________________________________

[OFFICIAL CAPACITY OF OFFICER]

Official Seal: __________________________

REVIEW CHECKLIST

• ☐ Confirm family information and all beneficiary designations.
• ☐ Complete the tax-apportionment choice.
• ☐ Confirm substitute takers for failed gifts and Trust interests.
• ☐ Confirm Trust beneficiaries, distribution standards, ages, and remainder beneficiaries.
• ☐ Confirm fiduciary and guardian or conservator nominees and successors.
• ☐ Complete the arbitration and no-contest choices only after attorney review.
• ☐ Confirm execution and self-proof before an authorized officer.
• ☐ Coordinate beneficiary designations, jointly owned property, and digital-account directions with this Will.

SOURCES AND REFERENCES

• South Dakota Legislature — SDCL chapter 29A-2, intestate succession and wills
• South Dakota Legislature — SDCL chapter 55-1, trusts
• South Dakota Legislature — SDCL chapter 55-19, fiduciary access to digital assets