South Dakota: Every Legal, Medical, and Estate Planning Document You Need

Here's a complete guide to every critical medical, legal, and estate planning document and relevant state law for South Daktoa. Download these forms and get started with Pillar to organize all of your most important documents in one safe, secure, easy-to-use online storage solution

February 2, 2021

Creating important medical and legal documents like an estate plan and advance directives now will save you and your loved ones much effort and grief later on. Read on to learn about the South Dakota forms, documents, and laws you need to know about to ensure your medical wishes are followed and that the things you leave behind find their new owner. 

Essential South Dakota Medical State Laws & Forms

South Dakota Medical Records and Death Certificates

How long do doctors keep medical records in South Dakota?

South Dakota requires that physicians retain medical records for at least 10 years from the last visit or date of care. Prior to destroying the records, a facility must retain a patient index or abstract that includes the name, date of birth, medical record number, summary of visit dates, physician name, and diagnosis or diagnoses code. 

Medical offices may only charge patients the actual cost of reproduction and mailing medical records. 

How to get a death certificate in South Dakota

Death certificates are an official record of the date of death and cause of death of a deceased person. The probate court, banks, life insurance companies, and other entities related to the wrapping up of affairs may require a copy.

In South Dakota, the Office of Vital Records maintains death records and issues certified copies of the records. 

There are four ways to obtain a death certificate in South Dakota:

  1. Online through the South Dakota vendor VitalChek
  2. Speak to a VitalChek agent at 1-605-773-4961 to request a copy via phone. 
  3. Visit the office in person at 207 E. Missouri, Suite 1-A in Pierre or go to any South Dakota Register of Deeds. You may print the application in advance to take it to the office. 
  4. Mail an application to State Office, 2007 E. Missouri, Suite 1-A, Pierre, SD 57501 or to any South Dakota Register of Deeds. 

South Dakota Advance Directive Forms & Laws

South Dakota has several laws to guide the development of documents needed to define your medical wishes and delegate decision-making, but the state has created few statutory or standardized forms to accomplish this. 

By completing or constructing these documents, you can ensure your wishes are followed, even if you are no longer able to voice them. They also relieve your loved ones of the burden of trying to guess your wishes or make difficult decisions on their own. 

How to make a living will

Living wills are documents that you make during your life to describe what life-saving measures, if any, you want should you be unresponsive and unable to tell the doctors yourself. Common issues addressed are feeding tubes and hydration and length of time you may want to receive these treatments. 

Full South Dakota statutes concerning living wills can be found in Chapter 34 of the state code.

Of particular note, South Dakota has a provision that, barring the existence of a living will to the contrary, pregnant women will be given life-sustaining treatment as long as the fetus continues to grow.

How to make a do not resuscitate order

The South Dakota version of the common Do Not Resuscitate (DNR) order is called Comfort One. A Comfort One directive provides instruction to medical personnel regarding your wishes to receive cardiopulmonary resuscitation (CPR), both manually or via electroshock. 

South Dakota has not created a state-standardized form. The required elements of a South Dakota DNR can be found in the South Dakota Administrative Rules. The directive shall include:

  1. The person’s name, date of birth, and gender;
  2. The person’s eye and hair color;
  3. The person’s race or ethnic background;
  4. If applicable, the name of the hospice program in which the person is enrolled;
  5. The name, address, telephone number, and signature of the person’s attending physician, physician assistant, or nurse practitioner;
  6. The person’s signature or mark;
  7. The date on that the directive was signed; and
  8. A statement directing emergency medical service personnel to withhold cardiopulmonary resuscitation attempts. 

South Dakota offers the purchase of a Comfort One bracelet to facilitate the quick identification of a DNR directive. South Dakota does not permit physician-assisted suicide.

How to make a medical power of attorney declaration in South Dakota

A durable power of attorney for health care allows another authorized person to make decisions regarding your healthcare, and this form designates that decision-maker, also called the attorney-in-fact. 

When a power of attorney form is designated as durable, that means that the attorney-in-fact’s power remains even after your incapacity.

Non-durable powers of attorney terminate at the onset of incapacity of the principal. South Dakota has not created a free, standard medical power of attorney form. Many online form retailers offer blank medical power of attorney forms.

South Dakota does offer a statutory power of attorney form for financial matters.

How to become an organ donor

To designate yourself as an organ donor, register with Donate Life Midwest. You will receive a sticker for your license after registration is processed. Children under 18 must have a parent sign a consent form for donor registration. 

Essential South Dakota Legal & Estate Planning Laws, Documents, and Forms 

What are the South Dakota probate rules and laws?

Probate is an umbrella term for the legal process of settling the estate of a deceased person (the "decedent") with or without a will. Property that passes directly to the new owner by the right of survivorship, trusts, or payable-on-death beneficiary designations are not subject to probate procedures and are called non-probate property.  Property already within a trust at the time of death is also non-probate property.

Because South Dakota adopted the Uniform Probate Code, much of the probate process takes place outside of court as the executor inventories the estate, determines heirs, and settles the debts before releasing funds or property to heirs. 

In the majority of cases, the court’s primary roles are to give the executor or personal representative authority to act via an order of appointment and to settle any disputes that arise. 

When there is dispute among interested parties regarding heirship or the validity of the will, the Court provides more supervision and determines outstanding issues.

The personal representative will be responsible for providing many accounting and inventory records to the court throughout administration of the estate in addition to dealing with creditors and distributing any assets.

What if the estate is small?

Estates consisting of no real estate and probate property valued at $50,000 or less qualify for a simplified procedure using an affidavit rather than opening a case with the probate court. Creditor claims must still be paid. 

What are South Dakota state trust laws?

There are two types of trusts: living trusts and trusts created by a will upon death. Laws governing both types of trusts can be found South Dakota Codified Laws Title 55.

Living Trust

A living trust (or inter vivos trust) is a trust that you make while you are alive. Beneficiaries of the trust receive the trust assets upon your death, or at another time determined by the terms of the trust. Property in the trust will be considered non-probate, and will be disposed of according to the terms of the trust rather than by will or probate law.

Testamentary Trust

Trusts can be created by a will upon the death of the Settlor (the person who funds the trust). 

The will directs assets into the trust, and the trust acts as a vessel for holding the assets until they are distributed to beneficiaries. Trusts are commonly used to hold money for children or for disabled people.

What are some benefits of trusts in South Dakota?

In addition to lessening your probate estate and maintaining privacy by keeping your property information out of the court, South Dakota enacted some trust provisions that make trusts particularly appealing in this state:

  • No state taxes are assessed on a trust’s income, capital gains, dividends, or interest.
  • Dynastic trust laws allow trusts to manage wealth for multiple generations
Read more about the biggest differences between a will and a trust, and why you might want to avoid South Dakota’s probate requirements when planning your estate.

How to set up a will in South Dakota

The basic requirements to create a valid will in South Dakota are:

  • The testator must be 18 years of older; and
  • Of sound mind.
  • The will must be in writing; and
  • Signed by the testator in the presence of two witnesses; and
  • The two witnesses must write their names on the will.

Holographic (handwritten) wills are considered valid, even if the will is not witnessed, if the signature and material portions of the document are in the testator’s own handwriting. Oral wills are not usually valid and are deemed valid only at a judicial officer’s discretion in unusual situations.  Read the full statutes regarding the validity of wills in South Dakota in the codified laws at Chapter 02.

How to manage your digital estate in South Dakota

South Dakota adopted the Uniform Fiduciary Access to Digital Assets Act in 2017.  The Act permits users to grant authority in their wills or other writing to their personal representative or other fiduciary to access their online accounts. This can take several forms depending on the discretion of the custodian of the digital accounts. The custodian may provide:

  • Full access to the user’s account;
  • Limited access to perform certain tasks as defined in the will or other writing; or
  • A copy of what the user could have seen had they logged in the day of the request;

A user may designate a recipient in a will, trust, or power of attorney.

South Dakota Estate and Inheritance Taxes

South Dakota does not impose either an inheritance tax or estate tax.  South Dakotans will still be subject to federal taxes. Three types of taxes may be involved when settling the estate of a deceased person: 

  1. Taxes on the transfer of the assets to beneficiaries (estate tax)
  2. Taxes on income created by assets of the decedent’s estate (income tax). 
  3. Final taxes on the income of the decedent up to the date of death (final return)

For information about filing these federal returns, review the IRS publications for filing final returns and for filing estate income taxes.

For the 2021 tax year, the federal threshold for estate taxes is $11,700,000, meaning estates valued at less than $11,700,000 do not have the estate tax levied against it. Estates that exceed this amount are assessed at progressive tax that caps at 40%. 

Everything You Need to Know About Estate Planning in South Dakota

South Dakota has a number of unique state laws when it comes to your medical records, inheritance taxes, wills, trusts, and estate planning. Navigate the strict probate process and lax estate tax with confidence with your customized (and organized!) Pillar account. You can scan, store, and share your most important state documents when you need them with Pillar's secure and easy-to-use online storage tool for you and your family.

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