Does a South Dakota Lawyer Have to Notify Me If I Am Named in a Will?

by Roger Jewell

Executors, also known as personal representatives, who manage the distribution of an estate in probate hearings when a valid will exists and administrators, appointed by the court in probate proceedings when there is no will, have a duty to notify potential heirs, beneficiaries named in a will and others entitled to notice under South Dakota law. An unreasonable failure to notify or search for you could result in the court imposing personal liability on the executor or administrator for wrongfully distributed assets that properly belong to you.

Notification and South Dakota Law

South Dakota requires executors to notify certain people of probate proceedings, whether the proceedings are formal or otherwise. This right cannot be waived except when done so in writing. The personal representative must notify you if you have filed a demand for notice or you are a potential heir or devisee, interested party, or potential creditor of the estate.

Reasonable Search for Heirs

South Dakota law requires personal representatives to conduct a reasonable search for any person entitled to notice of the probate proceedings. A diligent search may necessitate the personal representative hire a professional heir finder as well as publishing notice in a newspaper of general circulation describing the probate proceeding. However, mere publication of the notice in a newspaper may not be sufficient to prevent a person from later asserting a failure to be properly notified. Costs of conducting a diligent search are usually paid out of the assets of the estate.

Request for Notice

If you are entitled to notice, the notice must be sent to you by ordinary mail and indicate whether the personal representative has posted a bond to protect the estate. Generally, if you are entitled to receive notice, you must also be provided with a copy of the will that is being probated or administered. South Dakota law requires a personal representative to notify all persons who have filed a request for notice in the action. Personal representatives must also notify any person who the representative deems appropriate of the proceedings. The personal representative must also provide the South Dakota State Department of Social Services with a copy of any notice of formal or informal probate proceedings.

Consequences of Failure to Notify

Failure to properly notify a person entitled to notice of a probate proceeding or informal administration of an estate is a breach of the duties of the personal representative, but it is not necessarily grounds for removal as personal representative. However, a personal representative can be held personally liable for any funds or property wrongfully distributed that rightfully belong to the person who was not notified of the proceeding.