911 N.W.2d 746
S.D.2018Background
- Stanton W. Fox died Sept. 15, 2017; longtime partner Lynelle Herstedt (not married) filed for informal probate and appointment as personal representative on Oct. 11, 2017, attaching a copy of a Jan. 7, 2016 will.
- The Codington County Clerk issued letters appointing Lynelle and a clerk’s statement admitting the will to informal probate on Oct. 11, 2017.
- On Oct. 12, 2017, Kelly Fox (Stanton’s brother) petitioned the circuit court to revoke the letters and clerk’s statement, alleging the original will was not filed as required by SDCL 29A-3-301(a)(2).
- The circuit court entered an order revoking Lynelle’s letters and the clerk’s statement on Oct. 12, 2017, without prior notice to Lynelle; Lynelle was later served with the order and affidavit.
- Kelly and other siblings subsequently filed formal petitions for adjudication of intestacy and appointment of a personal representative; the circuit court stayed further proceedings pending this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court erred by revoking the clerk’s informal probate/letters without notice or hearing | Herstedt: revocation deprived her of required notice and opportunity to be heard under SDCL 29A-3-611 and 29A-3-307(b) | Kelly: the order is not appealable because it is not final; formal probate proceedings can still determine rights | Court: Appeal dismissed for lack of appellate jurisdiction because the order was not final; formal proceedings remain to determine will validity and PR appointment |
Key Cases Cited
- In re Estate of Geier, 809 N.W.2d 355 (S.D. 2012) (discussing when probate orders are "final" for appeal purposes)
- In re Estate of Lingscheit, 387 N.W.2d 738 (S.D. 1986) (traditional rule that final order disposes of entire proceeding)
- Scott v. Scott, 136 P.3d 892 (Colo. 2006) (probate order is final if it ends the particular action and leaves nothing further for the court to do)
- In re Estate of Ricard, 851 N.W.2d 753 (S.D. 2014) (formal and informal probate proceedings may intermix; formal petition converts matter into formal proceeding)