LA3100-Business Law- FA13

Learning Plan Assignment 10.1: Uniform Probate Code

Questions
1. What title of the South Dakota statutes is entitled "Uniform Probate Code"?
SDCL 29A
2. What statute contains the general definitions used in the South Dakota Uniform Probate Code?
SDCL 29A-1-201
3. How is a "child" defined under the South Dakota Uniform Probate Code?
A child includes an individual entitled to take as a child under this code by intestate succession
from the parent whose relationship is involved and excludes a person who is only a stepchild, a
foster child, a grandchild, or any more remote descendant. Any child of a deceased parent, who is
born after the decedent's death is considered a child in being at the decedent's death, if the child
was conceived prior to the decedent's death, was born within ten months of the decedent's death,
and survived one hundred twenty hours or more after birth.
SDCL 29A-1-201(6)
4. How is a "descendant" defined under the South Dakota Uniform Probate Code?
A descendant of an individual means the individual's descendants of all generations, with the
relationship of parent and child at each generation being determined by the definition of child
and parent contained in this code.
SDCL 29A-1-201(10)
5. How is an "heir" defined under the South Dakota Uniform Probate Code?
An heir means persons, including the surviving spouse and the state, who are entitled under the
statutes of intestate succession to the property of a decedent.
SDCL 29A-1-201(21)
6. How are "joint tenants with the right of survivorship" defined under the South Dakota
Uniform Probate Code?
"Joint tenants with the right of survivorship" and "community property with the right of
survivorship" includes co-owners of property held under circumstances that entitle one or more

to the whole of the property on the death of the other or others, but excludes forms of coownership registration in which the underlying ownership of each party is in proportion to that
party's contribution.
SDCL 29A-1-201(24)
7. How is a "minor" defined under the South Dakota Uniform Probate Code?
"Minor" means an individual who is under eighteen years of age.
SDCL 29A-1-201(27)
8. How is a "personal representative" defined under the South Dakota Uniform Probate Code?
"Personal representative" includes executor, administrator, successor personal representative,
special administrator, and persons who perform substantially the same function under the law
governing their status. "General personal representative" excludes a special administrator.
SDCL 29A-1-201(34)
9. How is "property" defined under the South Dakota Uniform Probate Code?
"Property" includes both real and personal property or any interest therein and means anything
that may be the subject of ownership.
SDCL 29A-1-201(38)
10.How is a "will" defined under the South Dakota Uniform Probate Code?
"Will" means an instrument, including a codicil, executed with testamentary intent and in the
manner prescribed by this code, including an instrument which:

(i) disposes of property on or after the testator's death,

(ii) appoints a personal representative,
(iii) revokes or amends another will,
(iv) nominates a guardian or conservator, or
(v) expressly excludes or limits the right of an individual or class to succeed to
property of the decedent passing by intestate succession.

SDCL 29A-1-201(52)
11.What statute addresses the "Intestate estate"?

29A-2-101. Intestate estate. (a) Any part of a decedent's estate not effectively disposed of by
will or otherwise passes by intestate succession to the decedent's heirs as prescribed in this code,
except as modified by the decedent's will.
(b) A decedent by will may expressly exclude or limit the right of an individual or class to
succeed to property of the decedent passing by intestate succession. If that individual or a
member of that class survives the decedent, the share of the decedent's intestate estate to which
that individual or class would have succeeded passes as if that individual or all members of that
class had disclaimed their intestate shares.
SDCL 29A-2-101
12.Under what circumstances is a surviving spouse entitled to the entire intestate estate?
The intestate share of a decedent's surviving spouse is:
The entire intestate estate if:
o No descendant of the decedent survives the decedent; or
o All of the decedent's surviving descendants are also descendants of the surviving
spouse;
o The first $100,000, plus one-half of any balance of the intestate estate, if one or
more of the decedent's surviving descendants are not descendants of the surviving
spouse.
SDCL 29A-2-102
13.What statute sets forth the shares of an intestate estate that pass to heirs other than surviving
spouse?
Any part of the intestate estate not passing to the decedent's surviving spouse under 29A-2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to
the individuals designated below who survive the decedent:

To the decedent's descendants by representation;

If there is no surviving descendant, to the decedent's parents equally if both survive, or to
the surviving parent;
If there is no surviving descendant or parent, to the descendants of the decedent's parents
or either of them by representation;
If there is no surviving descendant, parent, or descendant of a parent, but the decedent is
survived by one or more grandparents or descendants of grandparents, half of the estate
passes to the decedent's paternal grandparents equally if both survive, or to the surviving
paternal grandparent, or by representation to the descendants of the decedent's paternal
grandparents or either of them if both are deceased; and the other half passes to the
decedent's maternal relatives in the same manner; but if there is no surviving grandparent

or descendant of a grandparent on either the paternal or the maternal side, the entire estate
passes to the decedent's relatives on the other side in the same manner as the half.

SDCL 29A-2-103
14.How long must an individual survive the decedent to be entitled to a share of the decedent's
intestate estate?
Requirement that heir survive decedent for 120 hours. An individual who fails to survive the
decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead
allowance, exempt property, and intestate succession, and the decedent's heirs are determined
accordingly.
SDCL 29A-2-104
15.What statute provides that an intestate estate passes to the State of South Dakota, if there is
"no taker"?
If there is no taker under the provisions of this chapter, the intestate estate passes to the State of
South Dakota as provided in 29A-3-914.
SDCL 29A-2-105
16.What statute describes the procedure for the passing of an intestate estate by "representation"?
SDCL 29A-2-106
17.Is a relative of half blood entitled to the same share in an intestate estate as a relative of whole
blood?
Relatives of the half blood inherit the same share they would inherit if they were of the whole
blood.
SDCL 29A-2-107
18. Is a child born after the decedent's death entitled to share in the decedent's intestate estate?
Yes, an individual is treated as living at that time if the individual was conceived prior to a
decedent's death, born within ten months of a decedent's death, and survived one hundred twenty
hours or more after birth.
SDCL 29A-2-108

19. If the answer to question 18 is "yes," under what circumstances is such child entitled to such
a share? (Hint: How long must the child survive?)
If the child is born within 10 months of a decedents death and survived one hundred twenty
hours or more after birth.
SDCL 29A-2-108
20. Are dower and curtesy available in South Dakota?
Dower and curtesy are abolished.
SDCL 29A-2-112