Naming a Guardian in a Will in South Dakota: What Parents Need to Know

For parents of minor children, naming a guardian is the single most important reason to have a will. Without one, the court decides who raises your children — and the court's choice may not be yours.

How Guardian Nominations Work in South Dakota

Under SDCL 29A-5-202, parents of an unmarried minor can nominate a guardian through their will or any other signed writing. This nomination is not automatically binding — the court must formally appoint the guardian and confirm that the arrangement serves the child's best interests. But in practice, courts give heavy weight to a parent's nomination unless there is a compelling reason not to.

If both parents die simultaneously without nominating a guardian, the court chooses. The statute provides a priority list — typically starting with close family members — but the decision is ultimately the judge's. This means grandparents, aunts, uncles, or family friends may all petition, potentially triggering a contested hearing where the children's placement becomes a legal battle during the worst possible moment.

What the Nomination Should Include

The guardian nomination in your will should address:

Primary guardian: Your first choice — the person you trust most to raise your children in a way that aligns with your values and parenting approach.

Alternate guardian: If your first choice cannot serve (due to their own health, age, circumstances, or unwillingness at the time), the alternate steps in without requiring a new court proceeding.

Separate guardian and conservator: South Dakota allows you to nominate one person as guardian of the child's person (day-to-day care, education, medical decisions) and a different person as conservator of the child's property (managing inheritance, insurance proceeds, financial assets). This separation makes sense when your best parenting candidate is not your best financial management candidate.

Guidance for the guardian: While not legally binding, a letter of intent that accompanies your will can express your wishes about the children's upbringing — education preferences, religious instruction, maintaining relationships with specific family members, keeping siblings together.

The Training Requirement

A detail that surprises most parents: under South Dakota law, any court-appointed guardian or conservator must complete training curricula approved by the State Bar of South Dakota within four months of their appointment. This applies even to family members nominated in a will.

The training covers the guardian's legal responsibilities, reporting requirements, and the child's rights. It's not onerous, but your nominated guardian should know about it in advance so they're not caught off guard by a deadline during an already stressful transition.

The Minor's Own Voice

South Dakota law gives children a voice in the process. Under SDCL 29A-5-202, a minor aged 14 or older has the statutory right to nominate their own guardian. The court will respect this nomination if it serves the child's best interests.

This means a teenager's preferences carry legal weight. If your 15-year-old has a strong relationship with a particular aunt or uncle and would prefer to live with them over your nominated guardian, the court will seriously consider the teenager's preference.

Single Parents: Extra Urgency

For single parents — whether through divorce, death of the other parent, or by choice — the guardian nomination is even more critical. If the other parent is alive and has legal rights, they typically receive custody automatically regardless of your will's nomination. But if both parents are deceased or the other parent's rights have been terminated, the will nomination is the primary factor the court considers.

A single parent should also consider:

• Naming a temporary caretaker: Someone who can step in immediately (the same night) to care for the children while the permanent guardian arrangement is being formalized through court
• Keeping the nomination current: Children's relationships with adults change as they grow. A guardian choice made when your child was 2 may not be right when they're 12.

What Happens to the Children's Inheritance

Assets left to minor children cannot be distributed directly to them. South Dakota law requires that a conservator manage the funds until the child reaches age 18 (or a later age specified in your will or trust).

Options for managing inheritance:

• UTMA custodianship: The Uniform Transfers to Minors Act allows you to name a custodian who manages assets until the child reaches a specified age (up to 21 in South Dakota)
• Testamentary trust: Your will creates a trust for the child's benefit, with a trustee you choose managing distributions for education, health, and support
• Court-supervised conservatorship: The default if you've made no other provision — the conservator must file annual accountings with the court

For most families, naming a custodian under UTMA in your will is the simplest approach. A testamentary trust makes more sense for larger inheritances where you want the trustee to manage distributions beyond age 21.

The Conversation to Have

Talk to your chosen guardian before naming them in your will. Raising someone else's children is a profound commitment, and your nominee needs to agree willingly — not discover the responsibility after your death. Discuss:

• Whether they're willing and able to take on the role
• How the children's expenses would be covered (life insurance, inheritance, or their own resources)
• Your wishes for the children's upbringing
• Whether they would need to relocate or if the children would move to them

The South Dakota Basic Estate Planning Kit includes guardian nomination language that meets SDCL 29A-5-202 requirements, along with a template for the guidance letter that helps your chosen guardian understand your wishes for your children's future.

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