Title 55 — FIDUCIARIES AND TRUSTS

Notwithstanding anything contained in § 55-17-9 to the contrary: (1) A provision of a revocable South Dakota special spousal property trust does not adversely affect the interest of a creditor unless the creditor has actual knowledge of the trust when the obligation to the credit…

Notwithstanding anything contained in § 55-17-9 to the contrary: (1) Notice of the existence of a South Dakota special spousal property trust, a marriage, or the termination of a marriage does not affect the status of a purchaser as a bona fide purchaser; (2) Special spousal prop…

For purposes of § 55-17-12 , the term, bona fide purchaser, means a purchaser of property for value who has not knowingly been a party to fraud or illegality affecting the interest of the spouses or other parties to the transaction, does not have notice of an adverse claim by a s…

A South Dakota special spousal trust executed during marriage is not enforceable if the spouse against whom enforcement is sought proves that: (1) The trust was unconscionable when made; (2) The spouse against whom enforcement is sought did not execute the South Dakota special sp…

A South Dakota special spousal trust shall contain the following language in capital letters at the beginning of the trust: THE CONSEQUENCES OF THIS TRUST MAY BE VERY EXTENSIVE, INCLUDING YOUR RIGHTS WITH RESPECT TO CREDITORS AND OTHER THIRD PARTIES, AND YOUR RIGHTS WITH YOUR SPO…

Spouses may classify all or any of their property as special spousal property by transferring property to a South Dakota special spousal trust established pursuant to this chapter, and by expressly declaring in the trust that the property is community property. Unless there is a …

A South Dakota special spousal trust may not be amended or revoked unless the trust agreement provides for amendment or revocation, or unless the trust agreement is amended or revoked by a later South Dakota special spousal trust. To amend or revoke the trust, the later South Dak…

For purposes of the application of § 1014(b)(6) of the Internal Revenue Code of 1986, 26 U.S.C. § 1014(b)(6), as of January 1, 2016, a South Dakota special spousal trust is considered a trust established under the community property laws of South Dakota. For purposes of this chap…

A transfer to a South Dakota special spousal trust may also be a qualified disposition in trust if the transfer complies with the provisions of chapter 55-16 . Source: SL 2016, ch 231 , § 34.

In addition to other transfers of property to a South Dakota special spousal trust, property is considered transferred to a South Dakota special spousal trust if the property is subject to a nonprobate transfer on death under an insurance policy, contract of employment, bond, mor…

The trustee of a South Dakota special spousal trust shall maintain records that identify which property held by the trust is South Dakota special spousal property and which property held by the trust is not South Dakota special spousal property. Source: SL 2016, ch 231 , § 36.

Except as provided in §§ 55-17-10 and 55-17-11 , in a South Dakota special spousal trust, spouses may agree on: (1) The rights and obligations in the property transferred to the trust, notwithstanding when and where the property is acquired or located; (2) The management and cont…

Source: SL 2017, ch 208 , § 22.

Source: SL 2017, ch 208 , § 8.

Terms used in this chapter mean: (1) "Bind" or "bound," to consent, receive notice or service of process, approve, agree, object, resist, waive, or demand for or as a person with the same binding and conclusive effect as if the person represented had; (2) "Conflict of interest," …

In a judicial proceeding, the petitioner shall set forth information with respect to each representative, each person the representative represents, and the authority by which each representative acts under this chapter. In a nonjudicial proceeding, the notifier shall set forth i…

Any representative may decline to act as a representative as to the matter in question by timely expressing the representative's refusal to the notifier. A notifier may specify a time of not less than three days in which the representative may decline to act as a representative. …

A representative may petition the court for an order approving the representative's actions prior to or in advance of the representative's action, upon such notice as the court may order. Source: SL 2017, ch 208 , § 12.

A representative with a conflict of interest with respect to the matter in question may bind the person that the representative represents notwithstanding any cause of action that the represented person may have against a representative who acts knowingly. Source: SL 2017, ch 208…

If a representative knows that the representative has a conflict of interest with respect to the matter in question, the representative shall timely disclose the nature of the conflict of interest: (1) In a judicial proceeding to the interested parties and the court; or (2) Other…

Unless notice of a conflict of interest has been carried out pursuant to § 55-18-14 , if the notifier knows that a representative has a conflict of interest with respect to the matter in question, the notifier shall timely disclose the nature of the conflict of interest: (1) In a…

In a judicial proceeding, if the court has been notified of a representative's conflict of interest or potential conflict of interest, the court may find that the representative conflict of interest or potential conflict of interest is immaterial in view of the facts and circumst…

A representative may make a decision with broad discretion and no representative is liable for an action or omission unless the representative: (1) Acts dishonestly; (2) Acts with an improper motive; or (3) Fails, if under a duty to do so, to act. A representative may represent a…

A representative is entitled to reasonable compensation as determined by the trustee except as otherwise provided in the governing instrument. Source: SL 2017, ch 208 , § 18.

In a judicial proceeding, if the court determines that a person cannot be adequately represented by a representative, the court may order that the person be provided notice or may order the appointment of a court representative or a replacement court representative to bind the pe…

Notwithstanding the provisions of § 15-6-17(c), the provisions of this chapter apply to any proceeding involving any person interested in a trust. Source: SL 2017, ch 208 , § 1.

A settlor may be represented by a representative in amending, terminating, or revoking an inter vivos revocable trust only when the representative is: (1) An agent under a written power of attorney when the settlor is incapacitated or not reasonably available and to the extent ex…

Without diminishing the powers of a trustee over the affairs of the trust or trust property, a trustee may not bind a beneficiary of the trustee's trust except as provided in subdivisions 55-18-9(5), (9), (11), and (16). Source: SL 2017, ch 208 , § 21; SL 2019, ch 209 , § 10.

Nothing in this chapter, permits the unauthorized practice of law or diminishes the provisions of §

A governing instrument may require additional notification or consent than otherwise required by law. Unless expressly authorized by the governing instrument, a person designated by a governing instrument to represent another person or class of persons may not represent such pers…

With regard to a testamentary trust proceeding governed by title 29A, in the event of any conflict between this chapter, and chapter 29A-1 , the provisions of this chapter, shall prevail. Source: SL 2017, ch 208 , § 24.

No notifier is liable for undertaking any additional notification or seeking additional consent than required by law or the governing instrument. Source: SL 2017, ch 208 , § 25.

No fiduciary is liable for reliance on the outcome or resolution of any proceeding conducted under this chapter, unless the fiduciary knowingly disregarded the lack of a representative's authority to act with regard to the matter in question. Source: SL 2017, ch 208 , § 26.

In any proceeding: (1) Any notice, governing instrument, accounting, report, or other information which is provided to a representative has the same effect as if the same was given to the person represented; (2) The consent of a representative has the same effect as if the person…

Notwithstanding the provisions of § 55-18-3 , no representative may bind the person represented if, prior to the representative binding the person in the matter in question: (1) The court finds that the person cannot be adequately represented pursuant to § 55-18-19 ; (2) The repr…

Neither notice nor service of process on, nor consent to, any matter in any proceeding is required from: (1) An unborn individual; (2) An unascertained person; (3) The potential appointee of a power of appointment; (4) The potential taker in default of a general power of appointm…

When notice is made on, or consent obtained from, co-representatives, notice on, or consent from, all acting co-representatives is required except when the terms of the co-representatives' authority provide that the co-representatives may act independently or by other means. Howe…

Following the commencement of a judicial proceeding, if a beneficiary timely files a demand for notice with the court, notice shall be given to the beneficiary unless otherwise ordered by the court. Source: SL 2017, ch 208 , § 7; SL 2018, ch 275 , § 33.

The Department of Social Services shall be provided with notice in any proceeding in which an interested beneficiary of a trust may owe a debt to the department pursuant to §

Persons who may bind others are as follows: (1) Except as provided in subdivision 55-18-20(2), a conservator may bind a minor or protected person; (2) A guardian may bind the minor or protected person if no conservator of the minor or protected person has been appointed; (3) A pa…

Terms used in this chapter mean: (1) "Account," any arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user; (2) "Agent," any attorney-in-fact gran…

Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications s…

Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electr…

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, mainta…

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of electronic communications sent or received by an original or successor user and stored, carried…

After an opportunity for a hearing under chapter 29A-5 , a court may grant a conservator access to the digital assets of a protected person. Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalogue of electronic comm…

A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied b…

The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including: the duty of care, the duty of loyalty, and the duty of confidentiality. Source: SL 2017, ch 209 , § 16.

A fiduciary's or designated recipient's authority with respect to a digital asset of a user: (1) Is subject to the applicable terms of service except as otherwise provided in § 55-19-4 ; (2) Is subject to other applicable law, including copyright law; (3) Is limited by the scope …

A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a…