Title 55 — FIDUCIARIES AND TRUSTS

A spendthrift provision applies to both distribution interests and remainder interests. A spendthrift provision is a material provision of a trust. Source: SL 2007, ch 280 , § 14; SL 2008, ch 257 , § 5.

A distribution interest can be classified in three ways: (1) As a mandatory interest, which is a distribution interest, in which the timing of any distribution must occur within one year from the date the right to the distribution arises, and the trustee has no discretion in dete…

If a trust instrument containing the distribution language specifically provides that the trustee exercise discretion in a reasonable manner with regard to a discretionary interest, then notwithstanding any other provision of §§ 55-1-38 to 55-1-43 , inclusive, the distribution in…

To the extent a trust contains any combination of a mandatory provision, a support provision, the trust shall be bifurcated as follows: (1) The trust shall be a mandatory interest only to the extent of the mandatory language; (2) The trust shall be a support interest only to the …

An express trust is created as to the trustor and beneficiary by any words or acts of the trustor indicating with reasonable certainty: (1) An intention on the part of the trustor to create a trust; and (2) The subject, purpose, and beneficiary of the trust. Any express trust tha…

Although not the exclusive means to create a distribution interest, absent clear and convincing evidence to the contrary, the following language by itself results in the following classification of distribution interest: (1) Mandatory interest: (a) "All income shall be distribute…

If the trust contains a spendthrift provision, no creditor may reach present or future mandatory distributions from the trust at the trust level. Moreover, no court may order a trustee to distribute past due mandatory distributions directly to a creditor. Source: SL 2007, ch 280 …

Notwithstanding any other provision of law, no action of any kind, including an action to enforce a judgment entered by a court or other body having adjudicative authority, may be brought at law or in equity for an attachment or other provisional remedy against property that is t…

55-1-24.2 Withdrawal power. 55-1-25 Distinction between discretionary trust and support trust--Creditor rights--Judicial review. 55-1-26 Judicial foreclosure of beneficial interests, powers of appointment, and reserved powers prohibited--Creditors may not reach powers of appointm…

For purposes of §§ 55-1-46 to 55-1-51 , inclusive, a no contest clause is a provision or clause in a trust, that penalizes a qualified beneficiary for contesting a trust or instituting other proceedings at law or equity relating to the trust estate, excluding proceedings related …

A no contest clause shall be construed to carry out the settlor's intent. Except to the extent the no contest clause in the trust is vague or ambiguous, extrinsic evidence is not admissible to establish the settlor's intent concerning the no contest clause. The provisions of this…

A no contest clause is not enforceable against a beneficiary to the extent the beneficiary, in good faith and based upon probable cause, contests a provision that benefits any of the following persons: (1) A person who drafted or transcribed the instrument; (2) A person who gave …

Notwithstanding anything to the contrary in §§ 55-1-46 to 55-1-51 , inclusive, a no contest clause is enforceable against a beneficiary to the extent the beneficiary elects to contest or otherwise challenge the settlor's signature whereby such a challenge does not in any manner c…

An express trust is created as to the trustee by any words or acts of his, indicating with reasonable certainty: (1) His acceptance of the trust or his acknowledgment, made upon sufficient consideration, of its existence; and (2) The subject, purpose, and beneficiary thereof. Sou…

The terms of an express trust need not be for the exclusive benefit of its beneficiaries, whether or not the beneficiaries are ascertainable. Source: SL 2017, ch 204 , § 7.

55-1-53 Expansion, restriction, elimination, or variance of provisions of general application. 55-1-54 Arbitration. 55-1-55 Trust enforceable although not funded or without res, corpus, or assets. 55-1-56 Registration of trust in court at principal place of administration. 55-1-5…

Applicability of §§ 55-1-46 to

General pecuniary devises bear interest at the Category B rate of interest as provided in § 54-3-16 beginning one year after the event requiring a distribution until payment, unless a contrary intent is indicated by the terms of the trust. Source: SL 2013, ch 239 , § 15.

The terms of a governing instrument may expand, restrict, eliminate, or otherwise vary any provisions of general application to trusts and trust administration. Nothing in this section allows the terms of the governing instrument to expand, restrict, eliminate, or otherwise vary …

In addition to the trustee's power to submit to an arbitration claim in favor of or against a trust or trustee as set forth in § 55-1A-25 , a provision in a trust requiring the arbitration of a dispute between or among the beneficiaries, a fiduciary under the will or trust, or an…

A trust is valid and enforceable even though it may not be funded at a given time, or from time to time, or does not initially have any res or corpus or otherwise contain any asset of any nature. A trust is valid and enforceable even though its res is neither ascertainable nor id…

The trustee of a trust that has its principal place of administration in this state may register the trust in the court of this state at the principal place of administration. Unless otherwise designated in the trust instrument, the principal place of administration of a trust is…

Registration shall be accomplished by filing a statement indicating the name and address of the trustee in which it acknowledges the trusteeship. The statement shall indicate whether the trust has been registered elsewhere. The statement shall identify the trust: (1) In the case …

The registration shall be sealed and kept confidential except as provided below. The settlor, a trustee, trust advisor, or trust protector may obtain a certified copy of the registration but no other person or entity, absent a court order, may view or obtain a copy of the trust r…

The trust registration form may be substantially similar to the following form: State of Court Dakota _______________ Judicial Circuit County of _______________________________ Trust Registration No. _______________ REGISTRATION OF TRUST Name of Trust: ___________________________…

An implied trust is one which is created by operation of law. An implied trust arises in the cases described in §§ 55-1-7 to 55-1-10 , inclusive. Source: SDC 1939, §§ 59.0101, 59.0102.

No implied trust may prejudice the rights of a purchaser or encumbrancer of real property for value and without notice of the trust. Source: SL 2017, ch 204 , § 6.

One who wrongfully detains a thing is an implied trustee thereof for the benefit of the owner. Source: SDC 1939, § 59.0102 (1).

One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust or other wrongful act, is, unless he has some other and better right thereto, an implied trustee of the thing gained for the benefit of the person who would otherwise have had it. Source:…

Everyone to whom property is transferred in violation of a trust holds the same as an implied trustee under such trust, unless he purchased it in good faith and for a valuable consideration. Source: SDC 1939, § 59.0102 (3).