South Dakota § 29A-3-1203 - Succession to real property by affidavit.

§ 29A-3-1203. Succession to real property by affidavit.

Sixty days after the death of a decedent, any person claiming to be a successor to the decedent's interest in real property in this state may file, or cause to be filed on their behalf, an affidavit describing the real property owned by the decedent and the interest of the decedent in the property. A certified or authenticated copy of the decedent's death certificate and the affidavit must be filed with the register of deeds office in all counties where the real property of the decedent is located.

All persons claiming as successors or parties legally acting on their behalf shall sign the affidavit.

The affidavit, which is prima facie evidence of the facts included, must state:

(1)    The value of the decedent's interest in all real property located in this state does not exceed fifty thousand dollars. For real estate classified as non-agricultural, the value of the decedent's interest in property may be determined as shown on the assessment rolls for the year in which the decedent died. For real estate classified as agricultural, the value of the decedent's interest shall be the fair market value thereof on the date of the decedent's death;

(2)    That sixty days have elapsed since the death of the decedent;

(3)    That no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;

(4)    That the claiming successor is entitled to the real property because of the homestead allowance under § 29A-2-402, the family allowance under § 29A-2-403, by intestate succession, or by devise under the will of the decedent;

(5)    If succession is claimed to be by will, that the affiant has made an investigation and has been unable to determine any subsequent will;

(6)    That no one other than a claiming successor has a right to the interest of the decedent in the described property;

(7)    Each claiming successor's relationship to the decedent and the value of the entire estate of the decedent;

(8)    That the transfer of title is not subject to a transfer fee pursuant to subdivision 43-4-22(18);

(9)    The decedent has not incurred any indebtedness to the Department of Social Services for medical assistance for nursing home or other medical institutional care; and

(10)    That each person making the affidavit swear or affirm that all statements in the affidavit are true and material and further acknowledge that any false statement may subject the person or persons to criminal penalties.

A successor named in an affidavit under this section has the same protection and liability as a distributee who has received a deed of distribution from a personal representative, as provided in § 29A-3-908, subject to § 29A-3-901.

Any successor named in an affidavit under this section is responsible for seeing that any property received under this section is applied to liens, encumbrances, homestead allowance, exempt property, family allowance, funeral expenses, expenses of administration, and creditor claims.

If an interest in real property transferred under this section is acquired by a purchaser or lender in good faith, for value and without actual notice that the transfer was improper, the purchaser or lender takes title free of any claims of the decedent's estate and incurs no personal liability to the estate, whether or not the transfer was proper. Purchasers and lenders have no duty to inquire whether a transfer was proper.

Nothing in this section affects the rights of a secured creditor or judgment creditor in such property, or prevents any proceeding enforcing any mortgage, pledge, or other liens upon the real property described in the affidavit.

Source: SL 2022, ch 89, § 1.