South Dakota § 29A-3-402 - Formal testacy or appointment proceedings--Petition; contents.

§ 29A-3-402. Formal testacy or appointment proceedings--Petition; contents.

(a) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, shall be directed to the court, request a judicial order after notice and hearing and contain further statements as indicated in this section.

(b) A petition for formal probate of a will shall:

(1)    Request an order determining the heirs and the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated;

(2)    Contain the statements required for informal applications as stated in the six paragraphs under subsection 29A-3-301(a)(1), the statements required by paragraphs (ii) and (iii) of subsection 29A-3-301(a)(2); and

(3)    State whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.

(c) If the original will is neither in the possession of the court nor accompanies the petition and no certified copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.

(d) If the original will, or certified copy of the will as probated in another jurisdiction, is not available, the contents of the will can be proved by a copy of the will and the testimony or affidavit of at least one credible witness that the copy is a true copy of the original, and the will may be admitted to probate if the court is reasonably satisfied that the will was not revoked by the testator. If a copy of the will is not available, the contents of the will can be proved only by clear and convincing proof, and the court shall enter an order setting forth the contents and the names of the witnesses.

(e) A petition for adjudication of intestacy and appointment of a personal representative in intestacy shall request a judicial finding and order determining the heirs and that the decedent left no valid will, and shall contain the statements required by subsections 29A-3-301(a)(1) and (a)(4) and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of a personal representative, in which case, the statements required by paragraph (ii) of subsection 29A-3-301(a)(4) above may be omitted.

Source: SL 1994, ch 232, § 3-402; SL 1995, ch 167, § 112; SL 2002, ch 138, § 3.