Title 55 — FIDUCIARIES AND TRUSTS

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…

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 …

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…

A trustee may not use the influence which his position gives him to obtain any advantage from his beneficiary. Source: SDC 1939, § 59.0109.

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.

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.

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.

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 …

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.

Source: SL 2019, ch 209 , § 2.

The provisions of this chapter apply to all trusts. Source: SDC 1939, § 59.0201; SL 1993, ch 213 , § 254; SL 1993, ch 355 , § 1; SL 1998, ch 282 , § 11; SL 2010, ch 232 , § 2.

A trustee, whether he receives any compensation or not, must use at least ordinary care and diligence in the execution of his trust. Source: SDC 1939, § 59.0205.

A trustee must invest money received by him under the trust, as fast as he collects a sufficient amount, in such manner as to afford reasonable security and interest for the same. If he fails so to do, he must pay simple interest thereon if such omission is merely negligent, and …

A trustee cannot enforce any claim against the trust property which he purchases after or in contemplation of his appointment as trustee; but he may be allowed by any competent court to charge to the trust property what he has in good faith paid for the claim, upon discharging th…

A trustee, including a former trustee, is entitled to the repayment, out of the trust property, of all expenses actually and properly incurred by the trustee in the performance of the trustee's duties. The trustee is entitled to the repayment of even unlawful expenditures, if the…

When a declaration of trust does not specify the rate or amount of the trustee's compensation the trustee is entitled to and shall receive reasonable compensation for the performance of his duties. If such declaration specifies the amount or rate of his compensation, he is entitl…

The trustee of an implied trust who becomes such through his own fault has none of the rights to compensation or repayment of expense prescribed in §§ 55-3-13 and

The office of a trustee is vacated: (1) By its death; (2) By its discharge; or (3) By its resignation. Source: SDC 1939, § 59.0217; SL 2019, ch 209 , § 1.

A trustee can be discharged from his trust only as follows: (1) By the extinction of the trust; (2) By the completion of his duties under the trust; (3) By such means as may be prescribed by the declaration of trust; (4) By the consent of the beneficiary, if he has capacity to co…

In addition to the provisions included in the governing instrument, a fiduciary may resign: (1) In the case of a revocable trust: (a) Without court approval upon at least thirty days' notice to the settlor, all fiduciaries, all designated successors to the resigning fiduciary's o…

On the death, renunciation, or discharge of one of several cotrustees, the trust survives to the others. Source: SDC 1939, § 59.0219.

If a trustee procures or assents to his discharge from his office before his trust is fully executed, he must use at least ordinary care and diligence to secure the appointment of a trustworthy successor before accepting his own final discharge. Source: SDC 1939, § 59.0206.

The mutual consent of a trustor and trustee creates a trust of which the beneficiary may take advantage at any time prior to its rescission. Source: SDC 1939, § 59.0202.

The circuit court may remove any trustee who has violated, or is unfit to execute, his trust. It may appoint a trustee whenever there is a vacancy and the declaration of trust does not provide a practicable method of appointment. Source: SDC 1939, § 59.0220.

In addition to other remedies available by law and procedures or powers set out in a trust instrument, the settlor, or the settlor's agent, a trust protector, a cotrustee, or a qualified beneficiary as defined in § 55-2-13 , or an enforcer, as defined in § 55-1-21.4 , may request…

If a trust exists without any appointed trustees, or where all the trustees renounce, die, or are discharged, the circuit court for the county where the trust property or some portion thereof is situated must appoint another trustee and direct the execution of the trust. The cour…

55-3-23 Termination of trust. 55-3-24 Modification or termination of trust--Notice to fiduciaries--Distribution of property. 55-3-25 Petition to court for affirmation--Non-consenting beneficiaries--Distribution of property. 55-3-26 Petition to modify terms of trust--Circumstances…

In addition to the methods specified in §§ 55-3-24 to 55-3-27 , inclusive, a trust terminates if: (1) The term of the trust expires; (2) The trust purpose is fulfilled; (3) The trust purpose becomes unlawful or impossible to fulfill; or (4) The trust is revoked. Source: SL 1998, …

An irrevocable trust may be modified or terminated by judicial action or by the written consent of all beneficiaries, if continuance of the trust on its existing terms is not necessary to carry out a material purpose. Whether or not continuance of the trust on its existing terms …

A trustor, trustee, or beneficiary may but is not required to seek court affirmation of a modification or termination of a trust made pursuant to §

On petition by a trustee or beneficiary, the court may modify the administrative or dispositive terms of the trust or terminate the trust if, because of circumstances not anticipated by the trustor, modification or termination of the trust would substantially further the trustor'…

Except as otherwise provided by the terms of the trust, if the value of the trust property of a noncharitable trust is less than one hundred fifty thousand dollars, the trustee may terminate the trust. On petition by a trustee or beneficiary, the court may modify or terminate a n…

On petition by a trustee or beneficiary, the court may reform the terms of the trust, based upon a showing by the preponderance of the evidence and without any preliminary showing of an ambiguity, to conform to the trustor's intention if the failure to conform was due to a mistak…

Without approval of court and except as otherwise provided by the terms of the trust, a trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the combination or division does not impair the rights of any of the beneficia…

No beneficiary of a trust may assert the defense of laches in any proceeding to modify, reform, or terminate a trust pursuant to §§ 55-3-23 to 55-3-29 , inclusive. Source: SL 2009, ch 252 , § 22.

No beneficiary of a trust may assert a statute of limitations defense in any proceeding to modify, reform, or terminate a trust pursuant to §§ 55-3-23 to 55-3-29 , inclusive. Source: SL 2011, ch 212 , § 12.

When a trustee is appointed by a court or public officer as a trustee, the court or officer is the trustor. A court may otherwise establish or create a trust and may act as the trustor of a trust. Source: SDC 1939, § 59.0202; SL 2016, ch 231 , § 19.

The provisions of §§ 55-3-23 to 55-3-29 , inclusive, shall not be construed as exclusive methods of modifying or terminating irrevocable trusts. Source: SL 1998, ch 282 , § 8. 55-3-31 to 55-3-38. Repealed by SL 2017, ch 208 , § 36.

The nature, extent, and object of a trust are expressed in the declaration of trust. All declarations of a trustor to his trustees in relation to the trust, before its acceptance by the trustees or any of them are to be deemed part of the declaration of the trust, except that whe…

The validity, construction, and administration of a trust with a state jurisdiction provision are determined by the laws of this state, including the: (1) Capacity of the trustor; (2) Powers, obligations, liabilities, and rights of the trustees and the appointment and removal of …

For the purposes of § 55-3-39 , the term, qualified person, means: (1) An individual who, except for brief intervals, military service, attendance at an educational or training institution, or for absences for good cause shown, resides in this state, whose true and permanent home…

For the purposes of §§ 55-3-39 and 55-3-40 , the term, state jurisdiction provision, means a provision within the trust instrument that the laws of this state govern the validity, construction, or administration of a trust or that the trust is subject to the jurisdiction of this …

For the purposes of § 55-3-39 , the term, South Dakota investments, means real property located in South Dakota, any equity or debt securities of a corporation, partnership, or limited liability company organized under the laws of South Dakota or having its headquarters in South …

For the purposes of § 55-3-40 , the term, trustor, means a person who transfers property in trust, and includes a person who furnishes the property transferred to a trust even if the trust is created by another person. Source: SL 1998, ch 282 , § 25.

If a trust is not subject to court supervision under chapter 21-22 , and if no objection has been made by a distribution beneficiary, as defined in this title, of a trust within one hundred eighty days after a copy of the trustee's accounting has been provided in accordance with …