South Dakota Transfer on Death Deed Form

What is a South Dakota transfer-on-death (TOD) deed?

A South Dakota transfer-on-death deed—often called a TOD deed—is a written legal document that transfers property to one or more beneficiaries named in the document on the death of the owner. South Dakota TOD deeds were first authorized by the South Dakota Real Property Transfer on Death Act in 2014.¹

What is the purpose of a South Dakota TOD deed?

The South Dakota TOD deed form is designed to let a property owner avoid probate at death without releasing control of the property during life. It is nontestamentary, so it does not need to go through the probate process to transfer South Dakota real estate.² And because the owner still holds the right to sell or mortgage the property or revoke the TOD deed—without notifying or involving the named beneficiaries—the owner not only avoids probate at death, but keeps control over the property during life.

What is the benefit of avoiding probate?

Depending on the circumstances, probate can be expensive and take a lot of time. It requires someone—usually an attorney—to file a series of documents with the court in a certain order. These documents reveal the financial affairs of the deceased owner, even to the public. South Dakota TOD deeds let South Dakota property owners avoid the cost, hassle, and loss of privacy caused by probate requirements.

What types of property can be transferred using a South Dakota TOD deed?

The South Dakota Real Property Transfer on Death Act restricts the use of TOD deeds to real estate located in South Dakota.³ A South Dakota TOD deed cannot be used to transfer other kinds of property or real estate located in other states.

What is the effect of a South Dakota TOD deed while the owner is alive?

Because one purpose of a South Dakota TOD deed is to give the owner continued control over the property during life, the South Dakota Real Property Transfer on Death Act lists the things that are not affected by a TOD deed. During the owner’s life, a South Dakota TOD deed does not:

1. Affect an interest or right of the owner or any other owner (including the right to sell, give away, or mortgage the property);
2. Affect an interest or right of a beneficiary (even if the beneficiary knows about the deed);
3. Affect an interest or right of a secured or unsecured creditor or future creditor of the owner (even if the creditor knows about the deed);
4. Affect whether the owner or beneficiary can get any form of public assistance (like Medicaid);
5. Give the beneficiary any current rights to the property; or
6. Make the property available to claims by a beneficiary’s creditors.⁴

Can the owner sell the property after recording a TOD deed?

Yes. The South Dakota Real Property Transfer on Death Act does not limit an owner’s ability to make a transfer of the property before death, by gift or by sale.⁵ If the owner transfers the property to someone else during life, the beneficiary receives nothing.⁶

Is a South Dakota TOD deed revocable?

Yes. A South Dakota TOD deed can always be revoked, or canceled, even if the deed says it cannot.⁷ The South Dakota Real Property Transfer on Death Act identifies three documents that can revoke a TOD deed:

1. A more recent TOD deed that revokes the deed or part of the deed in clear language or by inconsistency with the previous TOD deed;
2. A revoking document that clearly revokes the deed or part of the deed; or
3. A transfer of the property during the owner’s life with language that clearly revokes the prior TOD deed.⁸

Each of these documents must be notarized after the date the original TOD deed was notarized and recorded. The notary must notarize it and the owner must record it before death in the public records in the Office of the Register of Deeds. in the county where the TOD deed was recorded.⁹

A South Dakota TOD deed can also be revoked by a transfer of the property to someone else while the owner is still alive.¹⁰ A transfer to someone else makes the TOD deed void by leaving nothing for the beneficiary to inherit on the owner’s death.¹¹

Special rules apply when joint owners sign the same TOD deed. If more than one owner makes a transfer-on-death deed, revocation by one owner does not affect the deed as to the interest of another owner.¹² A deed of joint owners is revoked only if it is revoked by all of the living joint owners.¹³

The US common law generally allows a person who makes a will to revoke the will by a revocatory act, such as tearing, burning, or destroying it. Because a South Dakota TOD deed is nontestamentary, it is not governed by the same laws that apply to wills. After recording a transfer-on-death deed is recorded, the owner may not revoke it by a revocatory act.¹⁴

What is the effect of a South Dakota TOD deed when the owner dies?

On the owner’s death—or, if the deed is signed by multiple joint owners, on the death of the last owner to die—the TOD deed transfers property to the beneficiaries as described in the deed.¹⁵ The beneficiaries take title as is, with no covenant or warranty of title (even if the deed contains these promises).¹⁶ After the owner’s death, any beneficiary may file an affidavit of confirmation (similar to a survivorship affidavit) with the register of deeds in the county where the property is located.¹⁷

Can a South Dakota TOD deed leave property to multiple beneficiaries?

Yes. The South Dakota Real Property Transfer on Death Act allows a TOD deed to transfer property to “one or more beneficiaries.”¹⁸ Unless the deed says otherwise, multiple beneficiaries receive the property in equal and undivided shares with no right of survivorship.¹⁹ There is just one case when they do not: if a beneficiary dies before the owner, that beneficiary’s share passes to the surviving beneficiary or beneficiaries.²⁰

Can joint owners sign a South Dakota TOD deed?

Yes. The South Dakota Real Property Transfer on Death Act lets joint owners—which include joint tenants with right of survivorship, but not tenants in common—sign the same South Dakota TOD deed.²¹ If other joint owners are still living when an owner dies, the property passes to those owners under the right of survivorship. If the deceased owner is the last surviving joint owner, then the transfer-on-death transfers the property to the beneficiaries it names.²²

What happens if the beneficiary named in a South Dakota TOD deed dies before the owner?

A beneficiary can receive the property only by surviving the owner. If a beneficiary dies before the owner—and assuming the deed does not say otherwise—the transfer to the deceased beneficiary lapses (fails).²³ If the TOD deed leaves property to multiple beneficiaries and a beneficiary dies before the owner, the deceased beneficiary’s interest passes to the other beneficiaries on a proportional basis.²⁴ Otherwise, the transfer to the deceased beneficiary is void.

The TOD deed may include special language to avoid these default rules by describing what happens if a beneficiary dies before the owner. The deed might name one or more alternate beneficiaries or include other conditions for transfer of the property.

Must the owner notify the beneficiaries of the South Dakota TOD deed?

Yes. The South Dakota Real Property Transfer on Death Act is clear that a transfer-on-death deed takes effect whether or not the beneficiary knows about it or approves it during the owner’s life.²⁵

Can a South Dakota TOD deed be used when the property is mortgaged?

Yes. The South Dakota Real Property Transfer on Death Act does not affect an existing or future mortgage. Also, a beneficiary takes the property subject to any mortgages that exist at the time of the owner’s death.²⁶

Must a South Dakota TOD deed be recorded?

Yes. To be valid, a South Dakota TOD deed must be recorded before the owner’s death in the public records. These records are filed in the Office of the Register of Deeds in the county where the property is located.²⁷

Can an agent sign a South Dakota TOD deed under a power of attorney?

Yes. An agent under a power of attorney may make, revoke, or change a beneficiary designation as long as the power of attorney clearly gives the agent power to do so.²⁸ The capacity required to make or revoke a transfer-on-death deed is the same as what is required to make a will.²⁹

What are the requirements for a South Dakota TOD deed?

The South Dakota Real Property Transfer on Death Act lists specific requirements for a TOD deed, including:

1. The deed must meet the general requirements for all South Dakota deeds, including proper formatting, identification of the parties, and a valid legal description of the property.
2. The deed must clearly say that the transfer to the beneficiary will happen at the owner’s death.
3. The deed must be recorded before the owner’s death in the public records in the Office of the Register of Deeds in the county where the property is located.³⁰

Because each state’s laws are unique, it is important to use a TOD deed that is designed specifically to follow South Dakota law. The use of a generic, fill-in-the-blank deed form can make the deed invalid or create costly title issues to resolve later.

1. See S.D. Codified Laws §§ 29A-6-401, et seq.
2. S.D. Codified Laws § 29A-6-406.
3. S.D. Codified Laws § 29A-6-402(5).
4. S.D. Codified Laws § 29A-6-414.
5. S.D. Codified Laws § 29A-6-413.
6. S.D. Codified Laws § 29A-6-416.
7. S.D. Codified Laws § 29A-6-405.
8. S.D. Codified Laws § 29A-6-410(1).
9. S.D. Codified Laws § 29A-6-410(2).
10. S.D. Codified Laws § 29A-6-413.
11. S.D. Codified Laws § 29A-6-416.
12. S.D. Codified Laws § 29A-6-411(1).
13. S.D. Codified Laws § 29A-6-411(2).
14. S.D. Codified Laws § 29A-6-412.
15. S.D. Codified Laws § 29A-6-415(1).
16. S.D. Codified Laws § 29A-6-418.
17. S.D. Codified Laws § 29A-6-427.
18. S.D. Codified Laws § 29A-6-403.
19. S.D. Codified Laws § 29A-6-415(3).
20. S.D. Codified Laws § 29A-6-415(4).
21. S.D. Codified Laws § 29A-6-402(3).
22. S.D. Codified Laws § 29A-6-417.
23. S.D. Codified Laws § 29A-6-415(2).
24. S.D. Codified Laws § 29A-6-415(4).
25. S.D. Codified Laws § 29A-6-409(1).
26. S.D. Codified Laws § 29A-6-416.
27. S.D. Codified Laws § 29A-6-408(3).
28. S.D. Codified Laws § 29A-6-426.
29. S.D. Codified Laws § 29A-6-407.
30. S.D. Codified Laws § 29A-6-408.