Title 55 — FIDUCIARIES AND TRUSTS
25 chapters · 567 sections in this title.
SDCL § 55-1-37 Application of spendthrift provision
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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.
SDCL § 55-1-38 Classification of distribution interest
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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…
SDCL § 55-1-38.1 Classification of interest as support interest
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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…
SDCL § 55-1-39 Bifurcation of trust
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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 …
SDCL § 55-1-4 Creation of express trust--Words or acts of trustor
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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…
SDCL § 55-1-40 Language resulting in classification of distribution interest
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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…
SDCL § 55-1-41 Effect of spendthrift provision
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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 …
SDCL § 55-1-44 Action for fraudulent transfer of settlor's assets--Jurisdiction--Attorneys' fees and costs--Burden of proof
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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…
SDCL § 55-1-45 55-1-24.1 Improper motive
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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…
SDCL § 55-1-46 No contest clause defined--Enforceability
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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 …
SDCL § 55-1-47 Extrinsic evidence not admissible to establish settlor's intent concerning no contest clause
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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…
SDCL § 55-1-48 Circumstances under which no contest clause unenforceable
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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 …
SDCL § 55-1-49 Contest regarding settlor's signature
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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…
SDCL § 55-1-5 Express trust created as to trustee--Words and acts of trustee
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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…
SDCL § 55-1-5.1 Express trust need not be for exclusive benefit of beneficiaries
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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.
SDCL § 55-1-50 55-1-52 Interest on general pecuniary devises
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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…
SDCL § 55-1-51 SDCL 55-1-51
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Applicability of §§ 55-1-46 to
SDCL § 55-1-52 Interest on general pecuniary devises
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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.
SDCL § 55-1-53 Expansion, restriction, elimination, or variance of provisions of general application
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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 …
SDCL § 55-1-54 Arbitration
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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…
SDCL § 55-1-55 Trust enforceable although not funded or without res, corpus, or assets
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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…
SDCL § 55-1-56 Registration of trust in court at principal place of administration
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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…
SDCL § 55-1-57 Contents of registration statement
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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 …
SDCL § 55-1-58 Confidentiality of registration
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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…
SDCL § 55-1-59 Trust registration form
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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: ___________________________…
SDCL § 55-1-6 Implied trust--Definition--Creation
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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.
SDCL § 55-1-6.1 Implied trust may not prejudice rights of real property purchaser or encumbrancer
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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.
SDCL § 55-1-7 Wrongful detention creates implied trust
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One who wrongfully detains a thing is an implied trustee thereof for the benefit of the owner. Source: SDC 1939, § 59.0102 (1).
SDCL § 55-1-8 Implied trust resulting from fraud, accident or wrongful act
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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:…
SDCL § 55-1-9 Implied trust created by transfer of property in violation of trust
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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).
SDCL § 55-1A-1 Powers enumerated in chapter apply to any trust unless specifically excluded--Powers as additional to common law powers
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Any or all of the powers enumerated in this chapter apply to any trust which is governed by South Dakota law unless the instrument specifically excludes any or all of the powers provided in this chapter. Further, this chapter applies without regard to the date of execution or whe…
SDCL § 55-1A-10 Deposit of trust funds in bank
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A trustee may deposit trust funds in a bank, including a bank operated by himself, or in a state or federal savings and loan association. Source: SL 1979, ch 336 , § 10.
SDCL § 55-1A-11 Disposal of trust assets
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A trustee may acquire, sell, or otherwise dispose of an asset, at public or private sale, for cash or on credit, with or without security as he deems advisable, and he may manage, develop, exchange, partition, change the character of, or abandon a trust asset or any interest ther…
SDCL § 55-1A-12 Grant or taking of option for disposition of assets
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A trustee may grant an option for the sale or other disposition of a trust asset, or take an option for the acquisition of any asset. Source: SL 1979, ch 336 , § 12.
SDCL § 55-1A-13 Leases by trustees
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A trustee may enter into a lease as lessor or lessee, with or without an option to purchase or renew, even if the term of the lease or renewal thereof, or of the option, extends beyond the term of the trust. Source: SL 1979, ch 336 , § 13.
SDCL § 55-1A-14 Repairs by trustee--Removal or demolition
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A trustee may make ordinary or extraordinary repairs, improvements, or alterations in buildings or other structures or in any other trust asset, and he may remove or demolish any improvements. Source: SL 1979, ch 336 , § 14.
SDCL § 55-1A-15 Razing or erection of party walls or buildings
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A trustee may raze existing, or erect new, party walls or buildings, alone or jointly with owners of adjacent property. Source: SL 1979, ch 336 , § 15.
SDCL § 55-1A-16 Land development or dedication--Valuation adjustments
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A trustee may subdivide, develop or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on the exchange or partition of land by giving or receiving consideration; or dedicate easements to public use without cons…
SDCL § 55-1A-17 Mineral and natural resource leases and explorations
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A trustee may enter into a lease or arrangement for the exploration for and removal of oil, gas and other minerals or other natural resources, and he may enter into pooling and unitization agreements. Source: SL 1979, ch 336 , § 17.
SDCL § 55-1A-18 Insurance
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A trustee may insure the assets of his trust against damage or loss, and the trustee against liability to third persons. Source: SL 1979, ch 336 , § 18.
SDCL § 55-1A-19 Voting stock or securities--Voting trust agreements
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A trustee may vote shares of stock or other securities held in trust, in person or by general or limited proxy, and he may enter into voting trust agreements on such terms and for such periods as he deems advisable. Source: SL 1979, ch 336 , § 19.
SDCL § 55-1A-2 Trustee defined
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As used in this chapter, the word, trustee, means any natural or legal person or persons acting as an original, substitute, added, or successor trustee of a testamentary or inter vivos trust, whichever in a particular case is appropriate. Source: SL 1979, ch 336 , § 1. 55-1A-3, 5…
SDCL § 55-1A-20 Payment of calls, assessments, and other sums charged against corporate securities
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A trustee may pay calls, assessments, and any other sums chargeable or accruing against or on account of shares of stock, bonds, debentures, or other corporate securities held in trust. Source: SL 1979, ch 336 , § 20.
SDCL § 55-1A-21 Corporate powers--Stocks--Reorganizations and mergers--Sales and leases
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A trustee may sell or exercise stock subscription or conversion rights; participate in foreclosures, reorganizations, consolidations, mergers or liquidations; and consent, directly or through a committee or other agent, to corporate sales, leases and encumbrances. In the exercise…
SDCL § 55-1A-22 Holding stock in nominee's name without disclosing fiduciary relationship
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A trustee may hold any stock or other security in the name of a nominee or nominees, without disclosure of any fiduciary relationship, but he shall be liable for any and all acts and omissions of the nominee relating to such assets. Source: SL 1979, ch 336 , § 22.
SDCL § 55-1A-23 Borrowing money against trust assets
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A trustee may borrow money, and mortgage or otherwise encumber or pledge trust assets, for a term within or extending beyond the term of his trust, in connection with the exercise of any power vested in himself. Source: SL 1979, ch 336 , § 23.
SDCL § 55-1A-24 Contracts binding upon trust
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A trustee may enter into contracts binding upon his trust which are reasonably incident to the administration of the trust and which he believes to be for the best interests of the trust. Source: SL 1979, ch 336 , § 24.
SDCL § 55-1A-25 Claims in favor of or against trust or trustee
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A trustee may pay, compromise, contest, submit to arbitration, or otherwise settle any and all claims in favor of or against his trust or himself as trustee. Source: SL 1979, ch 336 , § 25.
SDCL § 55-1A-26 Release of claim or lien
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A trustee may release, in whole or in part, any claim or lien belonging to his trust. Source: SL 1979, ch 336 , § 26.
SDCL § 55-1A-27 Payment of trust administration expenses
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A trustee may pay taxes, assessments, compensation of himself, and other expenses incurred in the collection, care, administration and protection of his trust. Source: SL 1979, ch 336 , § 27.