Title 55, FIDUCIARIES AND TRUSTS

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…

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.

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…

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…

This chapter may be cited or referred to as the "South Dakota Trustees' Powers Act." Source: SL 1979, ch 336 , § 37.

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.

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…

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.

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…

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…

A trustee may receive additions to the assets of his trust from any source. Source: SL 1979, ch 336 , § 6.

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.

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.

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…

(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…

Terms used in this chapter mean: (1) "Instrument," any revocable or irrevocable trust document created inter vivos or testamentary or any custodial account agreement, whether such document or agreement was created prior to, on, or after July 1, 1997; (2) "Trust protector," any pe…

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 …

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…

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…

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…

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…

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…

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.

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…

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.

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…

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…

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…

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…

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, …

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.

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.

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 …

(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…

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…

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…

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…

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 …

For the purposes of § 55-2-15 , a beneficiary shall be considered to have the power to "change the trustees" if he or she can, alone or with others, name himself or herself as a trustee or can remove a trustee and replace that trustee with a new trustee who is the beneficiary or …

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…

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 …

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 …

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.

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…

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 , § …

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…