South Dakota Codified Laws
Chapter 03 - Probate Of Wills And Administration
Section 29A-3-203 - Priority among persons seeking appointment as personal representative.

29A-3-203. Priority among persons seeking appointment as personal representative.
(a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
(1)The person with priority as determined by a probated will, including a person nominated by a power conferred in a will;
(2)The surviving spouse of the decedent who is a devisee of the decedent;
(3)Other devisees of the decedent;
(4)The surviving spouse of the decedent;
(5)Other heirs of the decedent;
(6)Forty-five days after the death of the decedent, any other qualified person.
(b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in subsection (a) apply except that:
(1)If the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;
(2)In case of objection to appointment of a person, other than one whose priority is determined by will, by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to the heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value, or, in default of this accord, any qualified person.
(c) A person entitled to letters under subsections (a)(2) through (a)(5) above may nominate a qualified person to have the same priority to act as personal representative as the person nominating. Any person may renounce the right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment in informal proceedings.
(d) Conservators of the estates of protected persons, or if there is no conservator, a guardian of a protected person, may exercise the same right to nominate, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person would have if qualified for appointment.
(e) Formal proceedings are required to appoint a personal representative in any of the following situations:
(1)When there is a person with a higher priority who has not renounced or waived the right by appropriate writing filed with the court;
(2)When a priority and right to nominate is shared by two or more persons, and one or more of them has not renounced or concurred in nominating the person whose appointment is applied for;
(3)When an appointment is sought for a person who does not have any priority under this section, in which event the court, prior to making the appointment, shall determine that those having priority do not object to the appointment, and that administration is necessary.
(f) No person is qualified to serve as a personal representative who is:
(1)Under the age of eighteen;
(2)A person whom the court finds unsuitable in formal proceedings; or
(3)A bank or trust company not qualified to do trust business or exercise trust powers in this state.
(g) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.



(h) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.

Source: SL 1994, ch 232, §3-203; SL 1995, ch 167, §102.

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