Title 55 — FIDUCIARIES AND TRUSTS
25 chapters · 567 sections in this title.
SDCL § 55-1A-28 Creation of reserves
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A trustee may create reserves out of income for depreciation, obsolescence, or amortization, or for the depletion of mineral or timber properties. Source: SL 1979, ch 336 , § 28.
SDCL § 55-1A-29 Payment of sum distributable to minor or other beneficiary under legal disability--Methods
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A trustee may make payment of any sum distributable to a minor or other beneficiary under legal disability, without liability to himself, by paying the sum in any one or more of the following ways: (1) Directly to the beneficiary; (2) To the conservator of the beneficiary; (3) Di…
SDCL § 55-1A-30 Distribution of property and money
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A trustee may effect distribution of property and money in divided or undivided interests, and adjust the resulting differences in valuation. Source: SL 1979, ch 336 , § 30.
SDCL § 55-1A-31 Employment of agents and assistants
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A trustee may employ attorneys, accountants, investment advisors, agents or other persons, even if they are associated with himself, to advise or assist himself in the performance of his duties; act without independent investigation upon their recommendations; and instead of acti…
SDCL § 55-1A-32 Prosecution or defense of actions and proceedings
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A trustee may prosecute or defend actions, claims or proceedings for the protection of trust assets or of the trustee in the performance of the trustee's duties. However, a trustee has no duty to prosecute, or to defend or continue to defend the trust or its assets in any action,…
SDCL § 55-1A-32.1 Trustee immunity from liability for failure to prosecute, defend, or continue to defend
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If the trustee fails to prosecute, defend, or continue to defend the trust or its assets because the conditions set forth in subdivision 55-1A-32(1) or (2) have not been fulfilled, the trustee is not liable for any such failure even if the failure, including without limitation a …
SDCL § 55-1A-33 Advance of income or loan to beneficiary--Lien
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A trustee may advance income or make loans out of trust property to a beneficiary on terms and conditions the trustee considers to be fair and reasonable under the circumstances, for which such advance or loan the trustee shall have a lien on the future benefits of such beneficia…
Advance of money for protection of trust--Lien
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A trustee may advance money for the protection of his trust or its assets, and for all expenses and liabilities sustained or incurred in or about the administration or protection of the trust, or because of the holding or ownership of any trust assets. Such trustee shall have a l…
SDCL § 55-1A-35 Execution and delivery of instruments
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A trustee may execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in himself. Source: SL 1979, ch 336 , § 35.
SDCL § 55-1A-35.1 Electronic execution of documents
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If otherwise validly executed, the following documents may be executed in accordance with chapter 53-12 : (1) The governing instrument of an express trust, or other document, other than a will or codicil as defined in title 29A; (2) The resignation, removal, appointment, or accep…
SDCL § 55-1A-36 Holding of two or more trusts with undivided interests
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A trustee may hold two or more trusts or parts of trusts created by the same instrument, as an undivided whole, without separation between such trusts or parts of such trusts; provided that, such separate trusts or parts of such trusts shall have undivided interests and that no s…
SDCL § 55-1A-37 Citation of chapter
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This chapter may be cited or referred to as the "South Dakota Trustees' Powers Act." Source: SL 1979, ch 336 , § 37.
SDCL § 55-1A-38 Trustee may perform necessary and appropriate acts
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A trustee may perform such other acts, which, in the judgment of the trustee, may be necessary or appropriate for the proper management, investment, and distribution of the trust estate. Source: SL 1998, ch 282 , § 37.
SDCL § 55-1A-39 Disclaimer of powers by trustee--Time limit
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Any power granted to a trustee in any written trust instrument may be disclaimed by that trustee in the manner provided by law for disclaimers, but without regard to the time limits provided by law for disclaimers. Upon such disclaimer, the powers so disclaimed shall cease to exi…
SDCL § 55-1A-4.1 Repealed by SL 2002, ch 100 , § 13 55-1A-5 Retention of trust property by trustee
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55-1A-6 Additions to trust assets. 55-1A-7 Operation of business by trustee. 55-1A-8 Acquisition of undivided interest in trust asset. 55-1A-9 Investment of trust assets. 55-1A-9.1 Affiliated investments. 55-1A-10 Deposit of trust funds in bank. 55-1A-11 Disposal of trust assets.…
SDCL § 55-1A-40 Trust name change
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A trustee may change the name of an irrevocable trust if the trustee deems such action to be in the best interests of the trust and its beneficiaries. Source: SL 2011, ch 212 , § 13.
SDCL § 55-1A-41 Co-trustee appointment--Powers
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Unless specifically restricted by the governing instrument, a trustee may appoint an individual or a corporate fiduciary as a co-trustee. The appointed co-trustee may serve only as long as the appointing trustee serves, or as long as the last to serve if more than one trustee app…
SDCL § 55-1A-5 Retention of trust property by trustee
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A trustee may collect, hold, and retain trust assets until, in his judgment, disposition of the assets should be made, without regard to any effect the retention may have upon the diversification of the trust estate. Trust property may be retained even though it includes an asset…
SDCL § 55-1A-6 Additions to trust assets
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A trustee may receive additions to the assets of his trust from any source. Source: SL 1979, ch 336 , § 6.
SDCL § 55-1A-7 Operation of business by trustee
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A trustee may continue or participate in the operation of any business or other enterprise, and effect the incorporation, dissolution, or other change in the form of the organization of the business or enterprise. Source: SL 1979, ch 336 , § 7.
SDCL § 55-1A-8 Acquisition of undivided interest in trust asset
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A trustee may acquire an undivided interest in a trust asset in which he, in any trust capacity, holds an undivided interest. Source: SL 1979, ch 336 , § 8.
SDCL § 55-1A-9 Investment of trust assets
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A trustee may invest and reinvest trust assets in any property or in an undivided interest in any property, wherever located, including bonds, debentures, secured or unsecured notes, preferred or common stock of corporations, real estate or improvements thereon or any interest th…
SDCL § 55-1A-9.1 Affiliated investments
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(a) As used in this section: (1) "Investment" means any security as defined in § 2(a)(1) of the Securities Act of 1933, any contract of sale of a commodity for future delivery within the meaning of § 2(I) of the Commodity Exchange Act, or any other asset permitted for trustee acc…
SDCL § 55-1B-1.1 Governing instrument may provide trust advisor or trust protector with powers and immunities of trustee
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Any governing instrument providing for a trust advisor or trust protector may also provide such trust advisor or trust protector with some, none, or all of the rights, powers, privileges, benefits, immunities, or authorities available to a trustee under South Dakota law or under …
SDCL § 55-1B-10 Powers and discretions of investment trust advisor
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The powers and discretions of an investment trust advisor shall be as provided in the trust instrument and may be exercised or not exercised, in the best interests of the trust, in the sole and absolute discretion of the investment trust advisor and are binding on any other perso…
SDCL § 55-1B-11 Powers and discretions of distribution trust advisor
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The powers and discretions of a distribution trust advisor over any discretionary distributions of income or principal, including distributions pursuant to an ascertainable standard or other criteria and appointments pursuant to § 55-2-15 , shall be provided in the trust instrume…
SDCL § 55-1B-12 Powers and discretions of family advisor
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The powers and discretions of a family advisor are as provided in the governing instrument or by court order and may be exercised or not exercised, in the best interests of the trust, in the sole and absolute discretion of the family advisor. The powers and discretions may only i…
SDCL § 55-1B-13 Tax trust advisor--Powers and discretions
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The powers and discretions of a tax trust advisor must be as provided in the governing instrument and may be exercised or not exercised, in the best interests of the trust, in the sole and absolute discretion of the tax trust advisor and are binding on any other person and any ot…
SDCL § 55-1B-2 Excluded fiduciary--Liability limits--Relief from obligations--Burden of proof against
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An excluded fiduciary is not liable, either individually or as a fiduciary, for any of the following: (1) Any loss that results from compliance with a direction of the trust advisor, including any loss from the trust advisor breaching fiduciary responsibilities or acting beyond t…
SDCL § 55-1B-3 Death of grantor
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An excluded fiduciary may continue to follow the direction of the trust advisor upon the incapacity or death of the grantor if the instrument so allows. Source: SL 1997, ch 280 , § 3.
SDCL § 55-1B-4 Trust advisor, tax trust advisor as fiduciary
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If one or more trust advisors and tax trust advisors are given authority by the terms of a governing instrument to direct, consent to, or disapprove a fiduciary's investment, distribution, or tax decisions, or proposed investment, distribution, or tax decisions, such trust adviso…
SDCL § 55-1B-5 Excluded fiduciary's liability for loss if trust protector appointed
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If an instrument appoints a trust protector, the excluded fiduciary is not liable for any loss resulting from any action taken upon such trust protector's direction. Source: SL 1997, ch 280 , § 5.
SDCL § 55-1B-6 Powers and discretions of trust protector
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The powers and discretions of a trust protector are as provided in the governing instrument and may be exercised or not exercised, in the best interests of the trust, in the sole and absolute discretion of the trust protector and are binding on all other persons. The powers and d…
SDCL § 55-1B-7 Submission to court jurisdiction--Effect on trust advisor or trust protector
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By accepting an appointment to serve as a trust advisor or trust protector of a trust that is subject to the laws of this State, the trust advisor or the trust protector submits to the jurisdiction of the courts of South Dakota even if investment advisory agreements or other rela…
SDCL § 55-1B-8 Powers of trust protector incorporated by reference in will or trust instrument
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Any of the powers enumerated in § 55-1B-6 , as they exist at the time of the signing of a will by a testator or at the time of the signing of a trust instrument by a trustor, may be, by appropriate reference made thereto, incorporated in whole or in part in such will or trust ins…
SDCL § 55-1B-9 Investment, distribution, or tax trust advisor--Provided for in instrument
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A trust instrument governed by the laws of this state may provide for a person to act as an investment trust advisor, a distribution trust advisor, or a tax trust advisor, respectively, with regard to investment decisions, distribution decisions, or tax decisions, respectively. U…
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…