A South Dakota transfer on death deed lets you name someone to receive your real property automatically when you die, without probate. You sign and notarize the deed, record it with the Register of Deeds in the county where the property sits, and keep full ownership and control for the rest of your life. When you die, the named beneficiary becomes the owner. The tool is governed by the Uniform Real Property Transfer on Death Act in SDCL Title 29A, Chapter 6.
What the Deed Must Contain
South Dakota requires three things for the deed to work. It must meet the formalities of a regular recorded deed, including the legal description of the property, your name as the owner, and acknowledgment before a notary. It must state that the transfer takes effect at your death. And it must be recorded with the county Register of Deeds before you die.1South Dakota Legislature. South Dakota Code 29A-6-408 – Requirements Miss any one of the three and the deed is worthless. The common failure is signing and notarizing but never getting the paper to the county.
The capacity you need to sign is the same as what’s required to make a will, not the higher standard for signing a contract.2South Dakota Legislature. South Dakota Code 29A-6 – Non-Probate Transfers
South Dakota publishes an optional statutory form in SDCL 29A-6-430.3South Dakota Legislature. South Dakota Code 29A-6-430 – Optional Form of Transfer on Death Deed You don’t have to use it, but it covers every required element. The form asks for your name, marital status, the legal description of the property, and the names and addresses of your beneficiaries. A checkbox lets you decide whether to apply the 120-hour survival requirement.
Use the legal description from your existing deed or from county assessor records. A street address alone is not enough. You can name one beneficiary or several, and you can name contingent beneficiaries who inherit if a primary beneficiary dies before you do. Multiple beneficiaries take as tenants in common in equal shares unless you say otherwise.
You do not need to tell the beneficiary, deliver the deed to them, or get their consent. Notice, delivery, acceptance, and consideration are all unnecessary.4Justia Law. South Dakota Code Title 29A, Chapter 06 – Non-Probate Transfers
Recording the Deed
Once the deed is signed and notarized, take it to the Register of Deeds in the county where the property is located. The recording fee is $30 for the first 50 pages and $2 for each page after that.5South Dakota Legislature. South Dakota Code 7-9-15 – Fees for Real Estate Documents A transfer on death deed almost always runs just a few pages, so expect to pay $30. The deed is exempt from the real estate transfer fee under SDCL 43-4-22(18).3South Dakota Legislature. South Dakota Code 29A-6-430 – Optional Form of Transfer on Death Deed
The county stamps the document and returns it, but the office does not check your work. Errors in the legal description or beneficiary names are yours to catch. Verify everything before filing.
What You Can Still Do With the Property
Recording the deed changes nothing about your ownership while you’re alive. During your lifetime the deed does not affect your right to sell, mortgage, or transfer the property, does not give the beneficiary any legal or equitable interest, does not affect anyone’s eligibility for public assistance, and does not expose the property to the beneficiary’s creditors. The beneficiary gets no rights even if they know the deed exists.6South Dakota Legislature. South Dakota Code 29A-6-414 – Effect of Transfer on Death Deed During Transferor’s Life
You can sell the house, refinance it, or let it fall into disrepair. The beneficiary has no standing to object.
How to Change or Revoke It
You can revoke the deed any time before you die, and the beneficiary has no say. South Dakota law makes the deed revocable even if the deed itself says otherwise.7South Dakota Legislature. South Dakota Code 29A-6-405 – Transfer on Death Deed Revocable Three methods work:
- Record a new transfer on death deed naming different beneficiaries or expressly revoking the earlier one. The statutory form includes language revoking all prior transfer on death deeds for the property.
- Record a separate instrument of revocation that identifies the property and states your intent to revoke.
- Record a regular deed transferring the property, such as a warranty or quitclaim deed, that expressly revokes the transfer on death deed.
Whichever route you take, the revoking document must be acknowledged after the date of the original deed and recorded before you die. Physically destroying the recorded deed does nothing. Tearing it up, burning it, or crossing it out has no legal effect once the deed is on file.8South Dakota Legislature. South Dakota Code 29A-6-412 – Revocation by Act Not Permitted
You also cannot revoke the deed through your will. The deed is classified as nontestamentary, which means your will cannot touch it.9South Dakota Legislature. South Dakota Code 29A-6-406 – Transfer on Death Deed Nontestamentary If your will leaves the house to your son but a recorded deed names your daughter, the daughter wins. This catches people who update the will and forget about the deed sitting in county records.
What the Beneficiary Does After You Die
When the owner dies, the beneficiary files an Affidavit of Confirmation and Survivorship with the Register of Deeds in the county where the original deed was recorded, along with a certified copy of the death certificate.10South Dakota Legislature. South Dakota Code 29A-6-432 – Affidavit of Confirmation and Survivorship Form A statutory form is provided. The affidavit identifies the deceased owner, references the recorded deed, and lists which beneficiaries survived and which did not.
The form also requires the beneficiary to confirm that the South Dakota Department of Social Services has been notified of the death and that either no Medicaid assistance was provided or any reimbursement obligation has been satisfied. Skipping this step can leave a cloud on the title. Once the affidavit and death certificate are recorded, the county records show the beneficiary as the new owner. No probate case is needed. The new owner picks up property taxes, existing liens, and maintenance from that point on.
The 120-Hour Survival Rule
A beneficiary must outlive the owner by at least 120 hours (five days) to inherit. A beneficiary who dies inside that window is treated as having died first, and the property passes to the contingent beneficiary or, if none is named, lapses.11South Dakota Legislature. South Dakota Code 29A-6-415 – Effect of Transfer on Death Deed at Transferor’s Death The rule prevents property from passing through two estates in quick succession, as can happen in a car accident. You can waive the requirement using the checkbox on the statutory form. If you name two or more beneficiaries together and one does not survive you, that person’s share goes to the surviving beneficiaries rather than lapsing.
What the Property Comes With
Transferring outside probate does not mean transferring free and clear. Several claims can follow the property into the beneficiary’s hands.
Creditors. Under SDCL 29A-6-421, a creditor or the personal representative of the owner’s estate can sue the beneficiary within six months of the owner’s death to recover what’s owed.12South Dakota Legislature. South Dakota Code 29A-6-421 – Liability for Creditor Claims and Statutory Allowances
Medicaid recovery. If the deceased received long-term care benefits, the Department of Social Services has the shorter of two years from the owner’s death or six months after receiving written notice of the death with the owner’s Social Security number (and, if available, the deceased spouse’s name and Social Security number). South Dakota recovers only for mandatory Medicaid services, principally long-term care. Nursing home costs add up quickly, and a Medicaid lien can consume much of the property’s value.
Existing mortgage. A loan on the property does not disappear. The beneficiary takes the property subject to the mortgage. The federal Garn-St. Germain Act prevents a lender from calling the loan due simply because the property passed to a relative at the borrower’s death.13Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions The beneficiary can keep making payments without the lender demanding full repayment.
Surviving spouse’s elective share. If you leave property to someone other than your spouse, your spouse may still claim an elective share of your augmented estate, which includes nonprobate transfers like a transfer on death deed.14South Dakota Legislature. South Dakota Code 29A-2-202 – Elective Share The percentage depends on how long you were married, running from 3% for marriages of at least one year up to 50% for marriages of 15 years or more, with a minimum supplemental amount of $50,000. The beneficiary could be required to contribute toward satisfying the share. Talk with an attorney before using the deed to route property around a spouse.
Joint Ownership
If you own property as joint tenants with right of survivorship, the survivorship right wins over the transfer on death deed. When one joint owner dies and another joint owner is still alive, the property goes to the surviving joint owner. The deed only takes effect when the last surviving joint owner dies.15South Dakota Legislature. South Dakota Code 29A-6-417 – Transfer on Death Deed by Joint Owner
If multiple owners want the deed to work regardless of who dies last, all of them should sign. When more than one person signs, any one of them can revoke only their own interest; revoking the deed entirely requires all living joint owners to act together.16South Dakota Legislature. South Dakota Code 29A-6-411 – Revocation by More Than One Transferor
Tax Treatment
Signing the deed is not a taxable gift. Because you keep full ownership and the power to revoke, no completed gift happens during your lifetime. The transfer occurs at death and falls under estate tax rules. South Dakota does not impose a state estate tax, and most owners fall well below the federal estate tax exemption.17Internal Revenue Service. Estate Tax
The beneficiary also gets a stepped-up basis. Under federal law, the beneficiary’s tax basis in the property resets to its fair market value on the owner’s date of death rather than what the owner originally paid.18Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent A house bought for $80,000 and worth $250,000 at death gives the beneficiary a $250,000 basis. Selling shortly after at that price would produce little or no taxable capital gain. The step-up applies to property passing through a transfer on death deed just as it does to property passing through a will or trust.