Will for Single Individual
(Optional Trust(s) for Children) (SD)

Summary

This template is a complete will for use by a single individual in South Dakota. It provides for the residuary estate to pass to the testator's surviving issue, either outright or in trust. Optional distribution provisions may be used for a testator without children. This template contains practical guidance, drafting notes, and alternate and optional clauses. If the testator chooses to distribute the estate outright to beneficiaries, any share for a minor child will be distributed to an individual having the care or custody of a minor child at the discretion of the personal representative. Generally, this would be a conservator of the minor or a custodian of a custodial account under the Uniform Transfers to Minors Act (UTMA) or Uniform Gifts to Minors Act (UGMA). However, an individual with minor children may choose to forgo the simpler UGMA/UTMA option, and instead opt for a testamentary trust (sometimes referred to as an express trust), which can be structured as either (1) a shared "pot" trust for the benefit of the testator's children collectively, or (2) separate share trusts for each of the testator's children. Although inclusion of testamentary trusts (i.e., express trusts) makes the disposition plan significantly more complicated and costly than would otherwise be the case, the testator may be desirous of creating a long-term distribution plan or providing creditor and spendthrift protections. A testator could also use one or more testamentary trusts for adult children in lieu of an outright distribution. A pot trust may be desirable if the testator wants to provide for their children in a way that addresses each child's particular needs, as opposed to giving fixed fractions to each child outright or in separate trusts. A pot trust allows the trustee to treat younger surviving children much as the parent would have if providing for those children during the parent's lifetime, since parents often provide for their children in ways that may not be entirely equal. For example, one child might attend an expensive private college and another child might opt to attend a less expensive public college. Or one child may have been born many years after another child and may not have the same financial needs as the older child. Alternatively, separate share trusts may be desirable when the testator wants each of their children (or issue of a predeceased child) to share equally in the testator's estate, and when the testator wants to provide for management of estate assets until their children reach a certain age. Establishing individual separate share trusts, as opposed to a single pot trust, is appropriate when all of the beneficiaries have reached the age of majority. The individual trusts usually provide an equal share of principal for each child but can be modified to provide unequal shares. The trustee has discretion in providing for each beneficiary from their own trust until they attain the specified age. The circumstances of the testator and beneficiaries, as well as the specific intentions of the testator, may require modifications to this template. For a will for a married individual, see Will for Individual with Spouse (Optional Trust(s) for Spouse and/or Children) (SD).