Title 55 — FIDUCIARIES AND TRUSTS
25 chapters · 567 sections in this title.
Notwithstanding the foregoing provisions of this section, the governing instrument of the second trust may grant a power of appointment to one or more of the beneficiaries of the second trust who are beneficiaries of the first trust
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The power of appointment may include the power to appoint trust property to the holder of the power of appointment, the holder's creditors, the holder's estate, the creditors of the holder's estate, or any other person, whether or not the person is a trust beneficiary. A trustee’…
SDCL 55-1-43
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Any other court review of the trustee's determination or any related appointment may be made only pursuant to §
(11) The provisions of this section are effective for trusts created, amended, or restated after June 30, 2002, except as otherwise directed by the trustor, trust protector, trust advisor, or other fiduciary designated by the terms of the trust
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For trusts created before July 1, 2002, a trustee has no duty at common law or otherwise to notify a qualified beneficiary of the trust's existence unless otherwise directed by the trustor. The provisions of this paragraph do not apply if otherwise directed by the trustor, trust …
SDCL § 55-2-1 Trustee's obligation of good faith
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In all matters connected with his trust a trustee is bound to act in the highest good faith toward his beneficiary and may not obtain any advantage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. Source: SDC 1939, …
SDCL § 55-2-10 Measure of liability for unauthorized use or disposal of trust property--Intent to serve interest of beneficiary
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A trustee who uses or disposes of the trust property in any manner not authorized by the trust but in good faith and with intent to serve the interest of the beneficiary is liable only to make good whatever is lost to the beneficiary by his error. Source: SDC 1939, § 59.0115.
SDCL § 55-2-11 Liability for acts of cotrustee
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A trustee is responsible for the wrongful acts of a cotrustee to which he consented or which by his negligence he enabled the latter to commit, but for no others. Source: SDC 1939, § 59.0116.
SDCL § 55-2-12 Liability and duties of successor trustee for agreements, contracts or actions of predecessor fiduciary
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Unless otherwise provided in the trust agreement, a successor trustee: (1) Is not individually liable for actions or inactions of a predecessor fiduciary, including agreements, contracts accountings, records, distributions, investments, modifications, reformations, or other acts …
Notice to qualified beneficiaries of existence of trust--Written directions--Variation of right of a beneficiary to be informed--Confidentiality of trust information
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(1) Except as otherwise provided by the terms of a trust instrument governing a revocable trust and subject to § 55-2-14 , a trustee has no duty to notify the qualified beneficiaries of the trust's existence. (2) Except as otherwise provided by the terms of a trust instrument gov…
SDCL § 55-2-13.1 Information to be provided to excluded fiduciaries--Liability limits of trustee
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A trust advisor, trust protector, or other fiduciary designated by the terms of the trust shall keep each excluded fiduciary designated by the terms of the trust reasonably informed about: (1) The administration of the trust with respect to any specific duty or function being per…
SDCL § 55-2-14 Duty to provide information regarding revocable trust and its administration
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A trustee of a revocable trust: (1) Subject to subdivision 3 below, shall keep the settlor reasonably informed of the trust and its administration; (2) Unless otherwise provided in the trust instrument, does not have a duty to inform a trust beneficiary of the trust and its admin…
SDCL § 55-2-15 Trustee authorized to distribute income or principal from first trust may appoint all or part in favor of trustee of second trust--Restrictions--Power of appointment to beneficiary of second trust
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Unless the terms of the governing instrument expressly provide otherwise, if a trustee has discretion under the terms of a governing instrument to make a distribution of income or principal to or for the benefit of one or more beneficiaries of a trust (the "first trust"), whether…
SDCL § 55-2-16 Action that may not be taken by restricted trustee may be taken by another unrestricted trustee
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Any action that may not be taken by a trustee of the first trust by reason of the restrictions in subdivision 55-2-15(2) may instead be taken by any other trustee of the first trust who is not so restricted, or, if none, by the next available party who can be a successor trustee …
SDCL § 55-2-17 SDCL 55-2-17
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§ 1396p(d)(4) (January 1, 2025); (3) No restricted trustee of the first trust may exercise such authority over the first trust to the extent that doing so would have the effect of increasing the distributions that can be made from the second trust to the restricted trustees of th…
SDCL § 55-2-18 Exercise of power to distribute income or principal by written instrument--Notice to beneficiaries of first trust
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The exercise of the power to distribute the income or principal of the trust under § 55-2-15 shall be by an instrument in writing, signed and acknowledged by the trustee and filed with the records of the trust. The trustee of the first trust may notify the beneficiaries of the fi…
SDCL § 55-2-19 Exercise of power to distribute income or principal considered exercise of power of appointment
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The exercise of the power to distribute the income or principal of the trust under § 55-2-15 shall be considered the exercise of a power of appointment (other than a power to appoint to the trustee, the trustee's creditors, the trustee's estate, or the creditors of the trustee's …
SDCL § 55-2-2 Trustee not to use property for his own benefit--Profit of trustee from use of property, extent of liability
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A trustee may not in any manner use or deal with the trust property for his own profit or for any other purpose unconnected with the trust. If he does so, he may, at the option of the beneficiary, be required to account for all profits thereby made or to pay the value of the use …
SDCL § 55-2-20 Impermissible use of power
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The power under § 55-2-15 may not be exercised to suspend the power to alienate trust property or extend the first trust beyond the permissible period of any rule against perpetuities applicable to the first trust. Source: SL 2007, ch 281 , § 6; SL 2011, ch 212 , § 9.
SDCL § 55-2-21 Trustee's right to distribute income or principal in trust arising under law or terms of first trust not abridged
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No provision of §§ 55-2-15 to 55-2-20 , inclusive, may be construed to abridge the right of any trustee who has power to distribute income or principal in further trust which arises under statute, common law, or the terms of the first trust. Source: SL 2007, ch 281 , § 7; SL 2009…
SDCL § 55-2-22 Fiduciary duty to determine that substituted property is of equivalent value
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Notwithstanding the terms of a trust instrument, if a settlor has a power to substitute property of equivalent value, a trustee has a fiduciary duty to determine that the substituted property is of equivalent value, prior to allowing the substitution. Source: SL 2009, ch 252 , § …
SDCL § 55-2-23 Excluded fiduciaries and trustees--Reliance on tax information--Applicability
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An excluded fiduciary, as defined in § 55-1B-1 , who receives tax information regarding an asset or entity owned by the trust, any trustee of a trust that holds an asset or entity owned by the trust but who does not manage the asset or entity, and any trustee who receives tax inf…
SDCL § 55-2-24 Notice to beneficiaries and other interested parties
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Except as otherwise provided by chapter 21-22 , § 55-4-58 , or by the terms of a governing instrument, and in addition to the methods of notice allowed or mandated by title 15, notice to beneficiaries and other persons interested in a trust pursuant to § 55-2-13 or otherwise may …
SDCL § 55-2-3 Transactions involving interest of trustee adverse to beneficiary prohibited--Exceptions
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Neither a trustee nor any of his agents may take part in any transaction concerning the trust in which he or anyone for whom he acts as agent has an interest, present or contingent, adverse to that of his beneficiary, except as follows: (1) When the beneficiary does have the capa…
SDCL § 55-2-4 Trustee's influence not to be used for his advantage
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A trustee may not use the influence which his position gives him to obtain any advantage from his beneficiary. Source: SDC 1939, § 59.0109.
SDCL § 55-2-5 Trustee not to assume a trust adverse to the interest of beneficiary
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No trustee so long as he remains in the trust may undertake another trust adverse in its nature to the interest of his beneficiary in the subject of the trust without the consent of the latter. Source: SDC 1939, § 59.0110.
SDCL § 55-2-6 Adverse interest of trustee--Information to beneficiary--Removal of trustee
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If a trustee acquires any interest or becomes charged with any duty adverse to the interest of his beneficiary in the subject of the trust, he must immediately inform the latter thereof and may be at once removed. Source: SDC 1939, § 59.0111.
SDCL § 55-2-7 Fraud against beneficiary of trust
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Every violation of the provisions of §§ 55-2-1 to 55-2-6 , inclusive, is a fraud against the beneficiary of the trust. Source: SDC 1939, § 59.0112.
SDCL § 55-2-8 Presumption against trustee
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All transactions between a trustee and his beneficiary during the existence of the trust or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration …
SDCL § 55-2-9 Liability of trustee mingling trust property with his own
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A trustee who willfully and unnecessarily mingles the trust property with his own so as to constitute himself in appearance its absolute owner is liable for its safety in all events. Source: SDC 1939, § 59.0114.