*     WILLS



Do both natural parents have to consent to place a child up for adoption?

When adopting a child, certain procedures are required by law.   The best interests of
the child to be adopted is the paramount concern of the court.   The consent of both
natural parents is required before a child can be put up for adoption.  However, there
are noteworthy exceptions to this rule.  The Court may waive consent of  a parent
under the following circumstances:   (1) If a parent has been convicted of a crime
where a significant prison sentence would deprive the child of that parent’s
companionship; (2) if the child has been abandoned for six months or more prior to
the filing of an adoption petition; (3) if one parent has repeatedly refused to give the
child parental care and protection; (4) when financially capable, a parent refuses to
pay support; (5) if a parent is unfit because of habitual alcohol or drug abuse; (6) if
custody has been judicially terminated, or (7) a parent fails to appear personally or by
counsel at a hearing to terminate parental rights after receiving notice.  If consent is
an issue in an adoption proceeding, then evidence of any one of the above seven
exceptions can be presented to the Court.  If the Court finds by clear and convincing
evidence that any one of these factors exist, the Court will waive the consent of the
parent.  The father of an illegitimate child also waives consent if he does not
acknowledge paternity within 60 days after the birth of the child, or commences a
judicial proceeding claiming a parental right.



How often should I review my Will?

A Will is in effect until it is changed or revoked.  You may do that as often as you
want, but it is recommended that your Will should be reviewed every 3 to 5 years, or
any time your family circumstances change.    A change in tax laws, or an increase in
the value of your assets may also necessitate a change to avoid unnecessary tax
liability.  A Will may be changed by re-writing it in its entirety, or through a codicil.  A
codicil is a written amendment which can change a single provision, or several
provisions in the Will, leaving all other provisions of the original Will in effect.  If you
elect not to have a Will, your property is distributed according to a formula set by
state law.  Married people can not disinherit their surviving spouse, unless the spouse


Are there restrictions against disinheriting a family member?

You may generally dispose of your property any way you want, but there are some
restrictions with regard to spouses.  You can not completely disinherit your spouse,
unless he or she agrees.  The surviving spouse may exercise an option to take an
elective share of your augmented estate in place of the provision made in your Will.  
The amount of the elective share is determined by the length of marriage.  The
augmented estate is the value of all decedent’s net probate estate, non-probate
transfers to spouse and others, and the surviving spouse’s property and non-probate
transfers to others.  There is no law however, against disinheriting a child.    If you
don’t have a Will, your spouse would receive the entire estate unless you also have
children.  If you have a spouse and children, and no Will, the spouse would receive
$100,000 plus half of the remaining estate.  The rest would go to your children.


Is life insurance a good substitute for a Will?

Life insurance is not a good substitute for a Will, but can be helpful when used in
conjunction with Will provisions.  If your probate assets include income producing
property such as agricultural land, a life insurance policy, which passes cash directly to
your beneficiary outside your Will, is often helpful in meeting immediate and long
term expenses after your death.  Life insurance is also helpful when you want to give
land or other business interests to your spouse or a particular child, but do not want
the rest of the family involved with the farm or ranch, or other business interest.  
This is common in farming and ranching families, where one child wants to continue
on with the farm or ranch, but brothers and sisters have chosen a different career
path, or are otherwise not directly involved with the farm, ranch or business.   
Depending upon your family situation, you may want to consider a combination of Will
and insurance provisions to meet the individual needs of your intended beneficiaries,
and to help avoid a dispute between family members after your passing.


What is Intellectual Property, and how do I protect it?

Intellectual property is something unique that you create with your mind, such as an
invention, trade name or symbol, or literary work.    Those types of property can be
valuable, and can be protected legally by obtaining a Patent, Trademark or Copyright.  
Patents protect inventions, and improvements to existing inventions.  Trademarks are
used to distinguish the goods or services of one business from all others in the market
place, and to identify the source of those goods or services.  A Copyright protects
literary, artistic, and musical works.   If you have created or written something worth
protecting, then you may want to consider getting a Patent, Trademark or Copyright
to keep others from using your ideas without giving you payment or credit for it.  
Attorneys are bound by confidentiality laws, and most people seek the help of a local
lawyer to assist them through the process of obtaining this type of protection.  Outside
companies who provide this service may not be bound by the same ethical rules as are
members of your local state bar association.
Joan Elayne Powell
Attorney at Law
Offices in Pierre and Gettysburg, South Dakota
Tel:  605-280-9521
Email:  Powell@sdcountrylawyer.com
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