S.D. Codified Laws § 55-9-5 — SD Code / Title 55 / Chapter 9 / Section 55-9-5
Enforcement by attorney general as representative of beneficiaries--Exception
Status: in_force

Except as otherwise set forth in § 55-9-3 , the attorney general shall represent the beneficiaries in all cases arising under this chapter, and the attorney general shall enforce such trusts by proper proceedings in the courts.

Source: SL 1955, ch 429, § 3; SDC Supp 1960, § 59.0603; SL 2012, ch 233, § 24.
S.D. Codified Laws § 55-19-27 — SD Code / Title 55 / Chapter 19 / Section 55-19-27
Custodian immunity
Status: in_force

A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.

Source: SL 2017, ch 209, § 27.
S.D. Codified Laws § 55-3-25 — SD Code / Title 55 / Chapter 3 / Section 55-3-25
Petition to court for affirmation--Non-consenting beneficiaries--Distribution of property
Status: in_force

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 § 55-3-24 . Upon petition by a trustor, trustee, or beneficiary, upon a finding that the provisions of § 55-3-24 have been met, the court shall affirm the proposed modification or termination of the trust. If any beneficiary does not consent to a requested modification or termination of a trust by the other beneficiaries or by the trustor and other beneficiaries, the court, with the consent of the other beneficiaries, and of the trustor, if required, may approve a requested modification or partial termination if the rights or interests of the beneficiaries who do not consent are not significantly impaired or adversely affected. Upon modification or partial termination of the trust, the trustee shall distribute the trust property as ordered by the court.

Source: SL 1998, ch 282, § 3; SL 2017, ch 204, § 19.
S.D. Codified Laws § 55-2-19 — SD Code / Title 55 / Chapter 2 / Section 55-2-19
Exercise of power to distribute income or principal considered exercise of power of appointment
Status: in_force

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 estate).

Source: SL 2007, ch 281, § 5.
S.D. Codified Laws § 55-4-14 — SD Code / Title 55 / Chapter 4 / Section 55-4-14
Permitted sales between trusts held by same corporate trustee
Status: in_force

A corporate trustee may sell stocks, bonds and other securities listed on all exchange supervised by the securities and exchange commission as well as obligations of the U.S. treasury and obligations of U.S. government agencies held by it in one account to itself as trustee of another account if the transaction is fair to both accounts and if such transaction is not prohibited by the instruments creating the trustee relationships.

Source: SL 1943, ch 308, § 6; SDC Supp 1960, § 59.0506; SL 1979, ch 337.
S.D. Codified Laws § 55-15-5 — SD Code / Title 55 / Chapter 15 / Section 55-15-5
Annual valuation of trust required
Status: in_force

The fair market value of the trust shall be determined at least annually, using such valuation date or dates or averages of valuation dates as are deemed appropriate. Assets for which a fair market value cannot be readily ascertained shall be valued using such valuation methods as are deemed reasonable and appropriate. Such assets may be excluded from valuation, if all income received with respect to such assets is distributed to the extent distributable in accordance with the terms of the governing instrument.

Source: SL 2002, ch 225, § 5.
S.D. Codified Laws § 55-10A-26 — SD Code / Title 55 / Chapter 10A / Section 55-10A-26
Repeal of the Gifts to Minors Act
Status: in_force

Chapter 55-10 is hereby repealed. To the extent that this chapter, by virtue of § 55-10A-24 , does not apply to transfers made in a manner prescribed in the Gifts to Minors Act of South Dakota or to the powers, duties and immunities conferred by transfers in that manner upon custodians and person dealing with custodians, the repeal of the Gifts to Minors Act of South Dakota does not affect those transfers or those powers, duties and immunities.

Source: SL 1986, ch 409, § 26.
S.D. Codified Laws § 55-10A-3 — SD Code / Title 55 / Chapter 10A / Section 55-10A-3
Nomination of custodian
Status: in_force

Any person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: "as custodian for __________________________ (name of minor) under the South Dakota Uniform Transfers to Minors Act." The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or in a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer or other obligor of the contractual rights. A custodian nominated under this section shall be a person to whom a transfer of property of that kind may be made under § 55-10A-9 . The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under § 55-10A-9 . Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to § 55-10A-9 .

Source: SL 1986, ch 409, § 3.
S.D. Codified Laws § 55-19-8 — SD Code / Title 55 / Chapter 19 / Section 55-19-8
Disclosure of other digital assets of deceased user
Status: in_force

Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:

(1) A written request for disclosure in physical or electronic form;

(2) A certified copy of the death certificate of the user;

(3) A certified copy of the letter of appointment of the representative or a small estate affidavit or court order; and

(4) If requested by the custodian:

(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;

(b) Evidence linking the account to the user;

(c) An affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or

(d) A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subsection (a) or that disclosure of the user's digital assets is reasonably necessary for administration of the estate.

Source: SL 2017, ch 209, § 8.
S.D. Codified Laws § 55-11-10 — SD Code / Title 55 / Chapter 11 / Section 55-11-10
Applicability of §37-24-5.4
Status: in_force

Notwithstanding §§ 55-11-1 , 55-11-3 , 55-11-5 and 55-11-5.1 and notwithstanding that the prearranged funeral trust contract may create an irrevocable trust, all prearranged funeral trust contracts are subject to the requirements of § 37-24-5.4 .

Source: SL 1986, ch 408, § 8.
S.D. Codified Laws § 55-2-21 — SD Code / Title 55 / Chapter 2 / Section 55-2-21
Trustee's right to distribute income or principal in trust arising under law or terms of first trust not abridged
Status: in_force

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, ch 252, § 20.
S.D. Codified Laws § 55-7-10 — SD Code / Title 55 / Chapter 7 / Section 55-7-10
Deposit in bank in names of two or more trustees--Check drawn by one
Status: in_force

When a deposit is made in a bank in the name of two or more persons as trustees and a check is drawn upon the trust account by any trustee or trustees authorized by the other trustee or trustees to draw checks upon the trust account, neither the payee nor other holder nor the bank is bound to inquire whether it is a breach of trust to authorize such trustee or trustees to draw checks upon the trust account, and is not liable unless the circumstances be such that the action of the payee or other holder or the bank amounts to bad faith.

Source: SL 1943, ch 19, § 10; SDC Supp 1960, § 6.0710.
S.D. Codified Laws § 55-1-44 — SD Code / Title 55 / Chapter 1 / Section 55-1-44
Action for fraudulent transfer of settlor's assets--Jurisdiction--Attorneys' fees and costs--Burden of proof
Status: in_force

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 the subject of a South Dakota trust or for avoidance of a transfer to a South Dakota trust unless the settlor's transfer of property was made with the intent to defraud that specific creditor. A court of this state has exclusive jurisdiction over an action brought under a claim for relief that is based on a transfer of property to a trust that is the subject of this section. A court of this state may award attorneys' fees and costs to the prevailing party in such an action. In any action described in this section, the burden to prove the matter by clear and convincing evidence is upon the creditor.

Source: SL 2011, ch 212, § 36; SL 2020, ch 206, § 5.
S.D. Codified Laws § 55-1-36 — SD Code / Title 55 / Chapter 1 / Section 55-1-36
Satisfaction of claims of settlor's creditors from trust estate if settlor is beneficiary
Status: in_force

If a settlor is also a beneficiary of the trust, and the transfer is a qualified transfer pursuant to chapter 55-16 , the provisions of §§ 55-1-24 to 55-1-43 , inclusive, also apply. Conversely, if the settlor is a beneficiary of the trust and the transfer is not a qualified transfer pursuant to chapter 55-16 , a provision restraining the voluntary or involuntary transfer of the settlor's beneficial interest does not prevent the settlor's creditors from satisfying claims from the settlor's interest in the trust estate. However, a settlor's creditors may not satisfy their respective claims from an irrevocable trust if:

(1) The settlor has retained a beneficial interest that is contingent upon surviving the settlor's spouse such as an interest in an inter vivos marital deduction trust in which the interest of the settlor's spouse is treated as qualified terminable interest property under § 2523(f) of the Internal Revenue Code of 1986 (26 U.S.C. § 2523(f)), as amended, an interest in an inter vivos marital deduction trust that is treated as a general power of appointment trust for which a marital deduction would be allowed under § 2523(a) and (e) of the Internal Revenue Code of 1986 (26 U.S.C. § 2523(a) and (e)), as amended, and an interest in an inter vivos trust commonly known as a credit shelter trust that used all or a portion of the settlor's unified credit under § 2505 of the Internal Revenue Code (26 U.S.C. § 2505), as amended;

(2) The settlor may be named, by someone other than the settlor, as an additional beneficiary or from a class of persons that includes the settlor; or

(3) The settlor is a permissible object of the exercise of a power of appointment over trust property held by someone other than the settlor.

Source: SL 2007, ch 280, § 13; SL 2011, ch 212, § 35; SL 2015, ch 240, § 12; SL 2020, ch 206, § 4.
S.D. Codified Laws § 55-1A-23 — SD Code / Title 55 / Chapter 1A / Section 55-1A-23
Borrowing money against trust assets
Status: in_force

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.
S.D. Codified Laws § 55-3-50 — SD Code / Title 55 / Chapter 3 / Section 55-3-50
Advancements
Status: in_force

Property given from a revocable trust during the trustor's lifetime to a trust beneficiary other than the trustor, whether the beneficiary holds a vested or contingent interest, is not treated as an advancement against the beneficiary's share, unless the trustor declared in a writing, or the beneficiary acknowledged in writing, that the gift is an advancement; or the trustor's writing or the beneficiary's written acknowledgment otherwise indicates that the gift is to be considered when computing the division and distribution of the trust estate following the death of the trustor.

A distribution from an irrevocable trust at the discretion of a trustee, or as directed by a distribution trust advisor, is not treated as an advancement against the beneficiary's share unless the trustee or distribution trust advisor declares in writing, or the beneficiary acknowledged in writing, that the distribution is an advancement; or the governing instrument indicates that discretionary distributions are equalized within or between classes of beneficiaries and are considered when computing the division or distributions from the trust.

Regardless of whether the recipient of the property survives the trust division or distribution, the property treated as an advancement herein is considered in computing the division and distribution of the trust estate, unless otherwise provided by the governing instrument or in writing by the trustee, distribution trust advisor or beneficiary, in accordance with this section.

For purposes of this section, property advanced is valued as of the time the beneficiary came into possession or enjoyment of the property.

Source: SL 2026, ch 198, § 3.
S.D. Codified Laws § 55-12-19 — SD Code / Title 55 / Chapter 12 / Section 55-12-19
Attorney general investigation into use of earnings fund--Subpoena
Status: in_force

If the attorney general has reason to believe that a perpetual care cemetery is not using the money in the earnings fund for the purposes listed in § 55-12-8.1 , the attorney general may investigate the use of the money in the earnings fund. The attorney general may execute in writing and may issue a subpoena upon any person who is believed to have information, documentary material, or physical evidence relevant to an alleged misuse of the money in the earnings fund. The subpoena shall require the person to furnish, under oath or otherwise, a report in writing setting forth the relevant facts and circumstances of which the person has knowledge, or to appear and testify, or to produce relevant documentary material or physical evidence for examination, at a reasonable time and place as stated in the subpoena.

Source: SL 2019, ch 210, § 2.
S.D. Codified Laws § 55-1-25 — SD Code / Title 55 / Chapter 1 / Section 55-1-25
Distinction between discretionary trust and support trust--Creditor rights--Judicial review
Status: in_force

The common law distinction between a discretionary trust and a support trust and the dual judicial review standards related to this distinction shall be maintained. In the area of creditor rights, the Restatement of Trusts (Third) and the Uniform Trust Code create many new positions of law as well as adopts many minority positions of law. The provisions of §§ 55-1-24 to 55-1-43 , inclusive, affirmatively reject many of these positions. Therefore, the Legislature does not intend the courts to consult the Restatement (Third) of the Law of Trusts § 50, § 56, § 58, § 59, or § 60 as approved by the American Law Institute or Uniform Trust Code Article 5 and Section 814(a) as approved by the National Conference of Commissioners on Uniform State Laws in 2004 with respect to subject matters addressed by the provisions of §§ 55-1-24 to 55-1-43 , inclusive.

Source: SL 2007, ch 280, § 2; SL 2015, ch 240, § 11.
S.D. Codified Laws § 55-4-12 — SD Code / Title 55 / Chapter 4 / Section 55-4-12
Corporate trustee depositing trust funds with self--Maintenance of required value--Ownership of income--Items specified in statements of financial condition to Division of Banking
Status: in_force

The separate fund of securities required by § 55-4-11 shall be marked as such. Withdrawals from or additions to it may be made from time to time, as long as the required value is maintained. The income of such securities shall belong to the corporate trustee. In all statements of its financial condition published, or delivered to the Division of Banking, such corporate trustee shall show as separate items the amount of trust funds which it has deposited with itself and the amount of securities which it holds as security for the payment of such deposits.

Source: SL 1943, ch 308, § 4; SDC Supp 1960, § 59.0504 (2).
S.D. Codified Laws § 55-15-10 — SD Code / Title 55 / Chapter 15 / Section 55-15-10
Distributions of principal and standards for income distributions not affected by conversion
Status: in_force

Conversion to a total return unitrust under the provisions of this chapter does not affect any other provisions of the governing instrument, if any, regarding distributions of principal or the standards for distributions of income.

Source: SL 2002, ch 225, § 10; SL 2023, ch 161, § 15.
S.D. Codified Laws § 55-13-11 — SD Code / Title 55 / Chapter 13 / Section 55-13-11
Other property subject to depletion
Status: in_force

Except as provided in §§ 55-13-9 and 55-13-10 , if the principal consists of property subject to depletion, including leaseholds, patents, copyrights, royalty rights, and rights to receive payments on a contract for deferred compensation, receipts from the property, not in excess of five percent per year of its inventory value, are income, and the balance is principal.

Source: SL 1984, ch 323, § 11.
S.D. Codified Laws § 55-1A-7 — SD Code / Title 55 / Chapter 1A / Section 55-1A-7
Operation of business by trustee
Status: in_force

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.
S.D. Codified Laws § 55-4-18 — SD Code / Title 55 / Chapter 4 / Section 55-4-18
Unenforceable oral trust created by deed--Liability of trustee to settlor for transfer of real property
Status: in_force

Where the intended trustee has transferred part or all of his interest and it has come into the hands of a bona fide purchaser, the intended trustee shall be liable to the settlor or his successor in interest for the value of the interest thus transferred at the time of its transfer, less such offsets as the court may deem equitable.

Source: SL 1943, ch 308, § 16; SDC Supp 1960, § 59.0516 (2).
S.D. Codified Laws § 55-13A-409 — SD Code / Title 55 / Chapter 13A / Section 55-13A-409
Deferred compensation, annuities, and similar payments
Status: in_force

(a) For the purposes of this section, the term, payment, means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer's general assets or from a separate fund created by the payer, including a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan.

(b) To the extent that a payment is characterized as interest or a dividend or a payment made in lieu of interest or a dividend, a trustee shall allocate it to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or an equivalent payment.

(c)(1) For purposes of this subsection, plan income means any of the following:

(A) With respect to payments received from a plan that maintains separate accounts or funds for its participants or account holders, such as defined contribution retirement plans, individual retirement accounts, Roth individual retirement accounts, and some types of deferred compensation plans, either the amount of the plan account or fund held for the benefit of the trust that, if the plan account or fund were a trust, would be allocated to income pursuant to subsections (b) and (d) for that accounting period, or four percent of the value of the plan account or fund on the first day of the accounting period. The trustee shall, in his or her discretion, choose the method of determining plan income pursuant to this paragraph, and may change the method of determining plan income pursuant to this paragraph for any subsequent accounting period;

(B) With respect to payments received from a plan that does not maintain separate accounts or funds for its participants or account holders, such as defined benefit retirement plans and some types of deferred compensation plans, four percent of the total present value of the trust's interest in the plan as of the first day of the accounting period, based on reasonable actuarial assumptions as determined by the trustee.

(2) For each accounting period of a trust in which the trust receives a payment but no part of any payment is allocated to income pursuant to subsection (b), the trustee shall allocate to income that portion of the aggregate value of all payments received by the trustee in that accounting period that is equal to the amount of plan income that is attributable to the trust's interest in the plan from which payment is received for that accounting period. The trustee shall allocate the balance of any payments to principal.

(d) If, to obtain an estate or gift tax marital deduction for an interest in a trust, a trustee must allocate more of a payment to income than provided for by this section, the trustee shall allocate to income the additional amount necessary to obtain the marital deduction.

(e) This section does not apply to payments to which § 55-13A-410 applies.

Source: SL 2007, ch 282, § 19; SL 2009, ch 252, § 35; SL 2010, ch 232, § 5.
S.D. Codified Laws § 55-10A-8 — SD Code / Title 55 / Chapter 10A / Section 55-10A-8
Receipt for custodial property
Status: in_force

A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to this chapter.

Source: SL 1986, ch 409, § 8.
S.D. Codified Laws § 55-6-2.1 — SD Code / Title 55 / Chapter 6 / Section 55-6-2.1
Powers of bank or trust company qualified to act as fiduciary
Status: in_force

A bank or trust company qualified to act as a fiduciary in this state may:

(1) Establish and maintain common trust funds or collective investment funds for the collective investment of funds held in any fiduciary capacity by it or by another bank or trust company which is owned or controlled by a corporation which owns or controls such bank or trust company;

(2) Invest funds which it holds in common trust funds or collective investment funds established and maintained pursuant to subdivision (1).

The provisions of §§ 55-6-1 to 55-6-7 , inclusive, relating to common trust funds or collective investment funds shall apply to the establishment and maintenance of common trust funds or collective investment funds under this section.

This section shall apply to all fiduciary relationships.

Source: SL 1978, ch 356, §§ 1 to 3; SL 2011, ch 212, § 25.
S.D. Codified Laws § 55-3-15 — SD Code / Title 55 / Chapter 3 / Section 55-3-15
Implied trustee--No rights to compensation or repayment of expenses
Status: in_force

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 55-3-14 .

Source: SDC 1939, § 59.0214.
S.D. Codified Laws § 55-1A-32 — SD Code / Title 55 / Chapter 1A / Section 55-1A-32
Prosecution or defense of actions and proceedings
Status: in_force

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, through exercise of judicial process or otherwise, to reach the assets of the trust in satisfaction of a claim against the trust, a beneficiary or the settlor of a trust unless:

(1) The trustee is reasonably satisfied that the readily marketable assets of the trust are sufficient to fully indemnify the trustee for all the liabilities and expenses, including professional fees and expense of counsel, accountants, and expert witnesses, that the trustee may incur in so prosecuting or defending the trust or its assets; or

(2) If the trustee is not satisfied that the settlor or the beneficiaries have provided the trustee with indemnity, supported with such security as may be satisfactory to the trustee in its sole discretion, as is then and will be sufficient to fully indemnify the trustee.

Unless otherwise provided in the trust agreement, a trustee who is no longer serving due to resignation or removal, whether by judicial process or pursuant to the trust agreement, or as a result of the trust terminating, does not have a duty to defend or continue to prosecute or defend the trust or its assets in any action, whether the trust is in existence or not at the time of such action.

Source: SL 1979, ch 336, § 32; SL 2017, ch 204, § 13; SL 2021, ch 207, § 11.
S.D. Codified Laws § 55-13A-501 — SD Code / Title 55 / Chapter 13A / Section 55-13A-501
Disbursements from income
Status: in_force

A trustee shall make the following disbursements from income to the extent that they are not disbursements to which § 55-13A-201(2)(B) or (C) applies:

(1) One-half of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee;

(2) One-half of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests;

(3) All of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and

(4) Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.

Source: SL 2007, ch 282, § 26.
S.D. Codified Laws § 55-13A-102 — SD Code / Title 55 / Chapter 13A / Section 55-13A-102
Definitions
Status: in_force

In this chapter:

(1) "Accounting period" means a calendar year unless another twelve-month period is selected by a fiduciary. The term includes a portion of a calendar year or other twelve-month period that begins when an income interest begins or ends when an income interest ends;

(2) "Beneficiary" includes, in the case of a decedent's estate, an heir, legatee, and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary;

(3) "Fiduciary" means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator, and a person performing substantially the same function;

(4) "Income" means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in §§ 55-13A- 401 to 55-13A-415 , inclusive;

(5) "Income beneficiary" means a person to whom net income of a trust is or may be payable;

(6) "Income interest" means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee's discretion;

(7) "Mandatory income interest" means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute;

(8) "Net income" means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this chapter to or from income during the period;

(9) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity;

(10) "Principal" means property held in trust for distribution to a remainder beneficiary when the trust terminates;

(11) "Remainder beneficiary" means a person entitled to receive principal when an income interest ends;

(12) "Terms of a trust" means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct;

(13) "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court.

Source: SL 2007, ch 282, § 2.
S.D. Codified Laws § 55-9-14 — SD Code / Title 55 / Chapter 9 / Section 55-9-14
State supervisory powers unimpaired by restrictions to avoid taxability of income
Status: in_force

Nothing in §§ 55-9-6 to 55-9-13 , inclusive, shall impair the rights and powers of the attorney general or the courts of this state with respect to any trust.

Source: SL 1972, ch 259, § 4.
S.D. Codified Laws § 55-3-20 — SD Code / Title 55 / Chapter 3 / Section 55-3-20
Removal of trustee by circuit court--Vacant trusteeship filled by court
Status: in_force

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.
S.D. Codified Laws § 55-3-42 — SD Code / Title 55 / Chapter 3 / Section 55-3-42
State jurisdiction provision defined
Status: in_force

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 state.

Source: SL 1998, ch 282, § 23; SL 2013, ch 239, § 22.
S.D. Codified Laws § 55-15-15 — SD Code / Title 55 / Chapter 15 / Section 55-15-15
Chapter not applicable to charitable remainder unitrust
Status: in_force

This chapter does not apply to a charitable remainder unitrust as defined by § 664(d) of the Internal Revenue Code of 1986 (26 U.S.C. § 664), as of January 1, 2009.

Source: SL 2009, ch 252, § 38.
S.D. Codified Laws § 55-1A-1 — SD Code / Title 55 / Chapter 1A / Section 55-1A-1
Powers enumerated in chapter apply to any trust unless specifically excluded--Powers as additional to common law powers
Status: in_force

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 whether such trust was created by will or inter vivos trust instrument. These powers shall be in addition to, and not in limitation of, all other common law or statutory powers of a trustee. Such powers are applicable to a trustee authorized to administer a trust estate established or to be established pursuant to the terms of a will or other written instrument, with the same effect, and subject to the same judicial interpretation and control in appropriate cases, as though such language were set forth verbatim in the instrument.

Source: SL 1979, ch 336, § 2; SL 2002, ch 100, § 10.
S.D. Codified Laws § 55-19-6 — SD Code / Title 55 / Chapter 19 / Section 55-19-6
Procedure for disclosing digital assets
Status: in_force

If a custodian discloses digital assets of a user under this chapter, the custodian may, at the custodian's sole discretion:

(1) Grant a fiduciary or designated recipient full access to the user's account;

(2) Grant a fiduciary or designated recipient partial access to the user's account sufficient to perform any task with which the fiduciary or designated recipient is charged; or

(3) Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.

A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.

A custodian need not disclose under this chapter a digital asset deleted by a user.

If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the user's digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose: a subset limited by date of the user's digital assets; all of the user's digital assets to the fiduciary or designated recipient; none of the user's digital assets; or all of the user's digital assets to the court for review in camera.

Source: SL 2017, ch 209, § 6.
S.D. Codified Laws § 55-10A-14 — SD Code / Title 55 / Chapter 10A / Section 55-10A-14
Care of custodial property
Status: in_force

A custodian shall take control of custodial property, register or record title to custodial property if appropriate, and collect, hold, manage, invest and reinvest custodial property.

In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain any custodial property received from a transferor.

A custodian may invest in or pay premiums on life insurance or endowment policies on the life of the minor only if the minor or the minor's estate is the sole beneficiary, or the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian, is the irrevocable beneficiary.

A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: "as a custodian for ___________________ (name of minor) under the South Dakota Uniform Transfers to Minors Act."

A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of fourteen years.

Source: SL 1986, ch 409, § 14.
S.D. Codified Laws § 55-2-13 — SD Code / Title 55 / Chapter 2 / Section 55-2-13
Notice to qualified beneficiaries of existence of trust--Written directions--Variation of right of a beneficiary to be informed--Confidentiality of trust information
Status: in_force

(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 governing an irrevocable trust or otherwise directed in writing by the trustor, trust advisor, or trust protector, the trustee shall:

(a) Notify the qualified beneficiaries of the trust's existence and of the right of the qualified beneficiary to request a copy of the trust instrument pertaining to the qualified beneficiary's interest in the trust within sixty days after the trustee has accepted trusteeship of the trust, or within sixty days after the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable;

(b) Promptly furnish to the qualified beneficiary a copy of the trust instrument upon request by the qualified beneficiary; and

(c) Promptly respond to a qualified beneficiary's request for information related to the administration of the trust, unless the request is unreasonable under the circumstances.

(3) The trustor, trust advisor, or trust protector, may, by the terms of the governing instrument, or by providing written directions to the trustee, expand, restrict, eliminate, or otherwise modify the rights of beneficiaries to information relating to a trust. Unless otherwise stated in the governing instrument, the direction of the trustor controls in the event of a conflict among written directions provided to the trustee pursuant to this section. The trustee incurs no liability for a loss or otherwise for relying upon the written directions, including an instance when the governing instrument of an irrevocable trust does not expressly authorize an expansion, restriction, or other modification of the rights of beneficiaries to information relating to a trust.

The terms of a trust instrument governing an irrevocable trust or written directions provided pursuant to this section may expand, restrict, eliminate, or otherwise vary the right of a beneficiary to be informed of the beneficiary's interest in a trust indefinitely or for a period of time, for example:

(a) A period of time related to the age of a beneficiary;

(b) A period of time related to the lifetime of either a trustor or spouse of a trustor, or both;

(c) A period of time related to a term of years or specific date; and

(d) A period of time related to a specific event that is certain to occur.

(4) The terms of the governing instrument or written directions provided pursuant to this section may authorize either the trustor, trust advisor, or trust protector to appoint a representative as provided in subdivisions 55-18-9 (11) and (12) for the purpose of being informed, on behalf of the beneficiary, of the beneficiary's interest in a trust for the period of time that the right of a beneficiary to be informed about a beneficiary's interest is restricted or eliminated pursuant to this section.

(5) The written directions of the trustor, whether made in the governing instrument or by separate written directions made pursuant to the governing instrument or this section, control and remain in effect upon the death of the trustor until or unless modified or revoked by a trust advisor or trust protector as permitted by the governing instrument or the trustor's written directions in effect at the time of the trustor's death. Subject to subsection (3), the written directions of a trust advisor or trust protector remain in effect until or unless a trust advisor or trust protector revokes the written directions by providing a writing to that effect to the trustee.

(6) Any beneficiary may waive the right to the notice or information otherwise required to be furnished under this section and, with respect to future reports and other information, may withdraw a waiver previously given.

(7) Before providing information to any qualified beneficiary, a fiduciary may require that any such qualified beneficiary or beneficiaries be bound by the same duty of confidentiality that binds the fiduciary. If trust information is sought through service of a subpoena on a fiduciary, the fiduciary may petition the court for an order that makes disclosure of trust information contingent upon the receiving party being bound by reasonable conditions to ensure the protection of confidentiality of trust information by the receiving party.

(8) The change in the identity of a trustee, occurring as the result of a mere name change or a merger, consolidation, combination, or reorganization of a trustee, does not require notice.

(9) For the purposes of this section, the term, qualified beneficiary, means a beneficiary that is an entity then in existence or an individual who is twenty-one years of age or older and who, on the date the beneficiary's qualification is determined:

(a) Is a distributee or permissible distributee of trust income or principal;

(b) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees terminated on that date; or

(c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

However, if the distributee is then unknown because a person holds a power to change the distributee, the trustee shall give notice only to the holder of the power.

(10) For purposes of this section, the term, trust advisor, and the term, trust protector, are defined as provided in § 55-1B-1 .

(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. 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 protector, trust advisor, or other fiduciary designated by the terms of the trust.

Source: SL 2002, ch 100, § 15; SL 2007, ch 247, § 8; SL 2008, ch 257, § 10; SL 2009, ch 252, § 16; SL 2010, ch 232, § 1; SL 2011, ch 212, § 8; SL 2017, ch 204, § 17; SL 2017, ch 208, § 30; SL 2018, ch 275, § 25; SL 2020, ch 206, § 12; SL 2023, ch 161, § 7.
S.D. Codified Laws § 55-10A-4 — SD Code / Title 55 / Chapter 10A / Section 55-10A-4
Transfer by gift or exercise of power of appointment
Status: in_force

Any person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to § 55-10A-9 .

Source: SL 1986, ch 409, § 4.
S.D. Codified Laws § 55-13-9 — SD Code / Title 55 / Chapter 13 / Section 55-13-9
Disposition of natural resources
Status: in_force

(a) If any part of the principal consists of a right to receive royalties, overriding or limited royalties, working interests, production payments, net profit interests, or other interests in minerals or other natural resources in, on or under land, the receipts from taking the natural resources from the land shall be allocated as follows:

(1) If received as rent on a lease or extension payments on a lease, the receipts are income.

(2) If received from a production payment, the receipts are income to the extent of any factor for interest or its equivalent provided in the governing instrument. There shall be allocated to principal the fraction of the balance of the receipts which the unrecovered cost of the production payment bears to the balance owed on the production payment, exclusive of any factor for interest or its equivalent. The receipts not allocated to principal are income.

(3) If received as a royalty, overriding or limited royalty, or bonus, or from a working, net profit, or any other interest in minerals or other natural resources, receipts not provided for in the preceding paragraphs of this section shall be apportioned on a yearly basis in accordance with this paragraph whether or not any natural resource was being taken from the land at the time the trust was established. Twenty - seven and one - half percent of the gross receipts (but not to exceed fifty percent of the net receipts remaining after payment of all expenses, direct and indirect, computed without allowance for depletion) shall be added to principal as an allowance for depletion. The balance of the gross receipts, after payment therefrom of all expenses, direct and indirect, is income.

(b) If a trustee, on July 1, 1984, held an item of depletable property of a type specified in this section he shall allocate receipts from the property in the manner used before July 1, 1984, but as to all depletable property acquired after July 1, 1984 by an existing or new trust, the method of allocation provided herein shall be used.

(c) This section does not apply to timber, water, soil, sod, dirt, turf, or mosses.

Source: SL 1984, ch 323, § 9.
S.D. Codified Laws § 55-3-28 — SD Code / Title 55 / Chapter 3 / Section 55-3-28
Terms of trust may be reformed by court
Status: in_force

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 mistake of fact or law or a scrivener's error and the trustor's intent can be established. The terms of the trust may be construed or modified, in a manner that does not violate the trustor's probable intention, to achieve the trustor's tax objectives.

Source: SL 1998, ch 282, § 6; SL 2016, ch 231, § 22; SL 2023, ch 161, § 10.
S.D. Codified Laws § 55-10A-11 — SD Code / Title 55 / Chapter 10A / Section 55-10A-11
Control
Status: in_force

A transferor shall place the custodian in control of the custodial property as soon as practicable.

Source: SL 1986, ch 409, § 11.
S.D. Codified Laws § 55-5-11 — SD Code / Title 55 / Chapter 5 / Section 55-5-11
Circumstances considered in investment decisions
Status: in_force

The circumstances that the trustee may consider in making investment decisions include, without limitation, the general economic conditions, the possible effect of inflation, the expected tax consequences of investment decisions or strategies, the role each investment or course of action plays within the overall portfolio, the expected total return, including both income yield and appreciation of capital, and the duty to incur only reasonable and appropriate costs. The trustee may consider related trusts and the assets of beneficiaries when making investment decisions.

Source: SL 1995, ch 271, § 11.
S.D. Codified Laws § 55-13A-407 — SD Code / Title 55 / Chapter 13A / Section 55-13A-407
Insurance policies and similar contracts
Status: in_force

(a) Except as otherwise provided in subsection (b), a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.

(b) A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to § 55-13A-403 , loss of profits from a business.

(c) This section does not apply to a contract to which § 55-13A-409 applies.

Source: SL 2007, ch 282, § 17.
S.D. Codified Laws § 55-13A-401 — SD Code / Title 55 / Chapter 13A / Section 55-13A-401
Character of receipts
Status: in_force

(a) In this section, the term, entity, means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization in which a trustee has an interest other than a trust or estate to which § 55-13A-402 applies, a business or activity to which § 55-13A-403 applies, or an asset-backed security to which § 55-13A-415 applies.

(b) Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity.

(c) A trustee shall allocate the following receipts from an entity to principal:

(1) Property other than money;

(2) Money received in one distribution or a series of related distributions in exchange for part or all of a trust's interest in the entity;

(3) Money received in total or partial liquidation of the entity; and

(4) Money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes.

(d) Money is received in partial liquidation:

(1) To the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or

(2) If the total amount of money and property received in a distribution or series of related distributions is greater than twenty percent of the entity's gross assets, as shown by the entity's year-end financial statements immediately preceding the initial receipt.

(e) Money is not received in partial liquidation, nor may it be taken into account under subsection (d)(2), to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.

(f) A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity's board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation's board of directors.

Source: SL 2007, ch 282, § 11.
S.D. Codified Laws § 55-13A-202 — SD Code / Title 55 / Chapter 13A / Section 55-13A-202
Distribution to residuary and remainder beneficiaries
Status: in_force

(a) Notwithstanding any contrary provision of this chapter, if the trust instrument adopts the provisions of this section by reference, an increase in the value of the following investments owned by a charitable remainder unitrust, of the type authorized in § 664(d)(3) of the Internal Revenue Code (26 U.S.C. § 664), as of January 1, 2009, is distributable as income when it becomes available for distribution:

(1) A zero coupon bond;

(2) An annuity contract before annuitization;

(3) A life insurance contract before the death of the insured;

(4) An interest in a common trust fund (as defined under § 584 of the Internal Revenue Code) (26 U.S.C. § 584);

(5) An interest in a partnership, as defined in § 7701 of the Internal Revenue Code (26 U.S.C. § 7701); or

(6) Any other obligation for the payment of money that is payable at a future time in accordance with a fixed, variable, or discretionary schedule of appreciation in excess of the price at which it was issued.

(b) For purposes of this section, the increase in value of an investment described in subsection (a) is available for distribution only if the trustee receives cash on account of the investment.

(c) The increase in value of the obligations described in subsection (a) is distributable to the beneficiary who was the income beneficiary at the time of the increase from the first principal cash available or, if none is available, when realized by sale, redemption, or other disposition. If unrealized increase is distributed as income but out of principal, the principal shall be reimbursed from the increase when realized.

Source: SL 2007, ch 282, § 7; SL 2009, ch 252, § 34.
S.D. Codified Laws § 55-12-15 — SD Code / Title 55 / Chapter 12 / Section 55-12-15
Violations as petty offenses
Status: in_force

A violation of § 55-12-3 , 55-12-4 , 55-12-8 , 55-12-10 , 55-12-11 , 55-12-13 or 55-12-14 is a petty offense. Each day a violation occurs except the commission of any act declared unlawful in § 55-12-13 shall be a separate and distinct offense.

Source: SL 1955, ch 97, §§ 9, 10; SDC Supp 1960, § 11.9902; SL 1980, ch 24, § 110.
S.D. Codified Laws § 55-5-6 — SD Code / Title 55 / Chapter 5 / Section 55-5-6
Standards for investing and managing assets
Status: in_force

The trustee shall invest and manage trust assets as a prudent investor would considering the purposes, terms, distribution requirements, and other circumstances of the trust. This standard requires the exercise of reasonable care, skill, and caution and shall be applied to investments not in isolation, but in the context of the trust portfolio as a whole and as a part of an overall investment strategy that should incorporate risk and return objectives reasonably suitable to the trust.

Source: SL 1995, ch 271, § 6.
S.D. Codified Laws § 55-11-7 — SD Code / Title 55 / Chapter 11 / Section 55-11-7
Solicitation of funeral trust contracts--Annual registration required--Exception--Unauthorized solicitation or sale prohibited--Violation as misdemeanor
Status: in_force

Notwithstanding the provision contained in subdivision 36-19-38(8), prearranged funeral trust contracts may be solicited. However, no person may sell, offer to sell or solicit a prearranged funeral trust contract unless he registers annually with the State Board of Funeral Service and the person is a funeral establishment licensed in the State of South Dakota or a person, partnership or corporation engaged in the business of the ownership, maintenance or operation of a cemetery or an agent or employee of a funeral establishment licensed in the State of South Dakota or the agent or employee of a person, partnership or corporation engaged in the business of the ownership, maintenance or operation of a cemetery. Any natural person who is licensed to practice funeral service under chapter 36-19 and who is the owner or employee of a funeral home licensed pursuant to § 36-19-14 is exempt from the registration requirements of this section and, as to activities for which such person is licensed pursuant to chapter 36-19 , is exempt from the licensing and bonding provisions of chapter 37-13 . Failure to annually register is a Class 2 misdemeanor.

No person may sell, offer to sell or solicit a prearranged funeral trust contract for professional services as defined in § 55-11-1.1 unless the seller or the funeral establishment or cemetery of which the seller is an agent or employee is authorized by law to provide and is regularly engaged in the business of providing such services. Any violation of this section is a Class 2 misdemeanor.

Source: SL 1981, ch 355, § 5; SL 1986, ch 408, § 5; SL 1987, ch 366.
S.D. Codified Laws § 55-4-34 — SD Code / Title 55 / Chapter 4 / Section 55-4-34
Application of chapter to testamentary trust
Status: in_force

This chapter shall apply only to testamentary trusts created by wills or codicils executed after July 1, 1943 and to nontestamentary trusts created after July 1, 1943.

Source: SL 1943, ch 308, § 25; SDC Supp 1960, § 59.0523.
S.D. Codified Laws § 55-1-4 — SD Code / Title 55 / Chapter 1 / Section 55-1-4
Creation of express trust--Words or acts of trustor
Status: in_force

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 that concerns real property shall also be evidenced in writing.

Source: SDC 1939, § 59.0105; SL 2017, ch 204, § 5.
S.D. Codified Laws § 55-15-11 — SD Code / Title 55 / Chapter 15 / Section 55-15-11
Spouse may compel reconversion to income trust for certain trusts--Written instrument required
Status: in_force

In the case of a trust for which a marital deduction has been taken for federal tax purpose under I.R.C. section 2056 or 2523, the spouse otherwise entitled to receive the net income of the trust has the right, by written instrument delivered to the trustee, to compel the reconversion during his or her lifetime of the trust from a total return unitrust to an income trust, notwithstanding anything in this chapter to the contrary.

Source: SL 2002, ch 225, § 11.
S.D. Codified Laws § 55-10A-6 — SD Code / Title 55 / Chapter 10A / Section 55-10A-6
Other transfer by fiduciary
Status: in_force

A transfer under subdivisions (1) or (2) may be made only if the personal representative, trustee or conservator considers the transfer to be in the best interest of the minor, the transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement or other governing instrument and the transfer is authorized by the court if it exceeds ten thousand dollars in value; and:

(1) A personal representative or trustee may make an irrevocable transfer to another adult or trust company as custodian for the benefit of a minor pursuant to § 55-10A-9 , in the absence of a will or under a will or trust that does not contain an authorization to do so; or

(2) A conservator may make an irrevocable transfer to another adult or trust company as custodian for the benefit of the minor pursuant to § 55-10A-9 .

Source: SL 1986, ch 409, § 6.
S.D. Codified Laws § 55-17-9 — SD Code / Title 55 / Chapter 17 / Section 55-17-9
Matters upon which spouses may agree
Status: in_force

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 control of the property transferred to the trust;

(3) The disposition of the property transferred to the trust on dissolution, death, or the occurrence or nonoccurrence of another event; if there is no provision in the governing instrument on disposition of the property transferred to the trust on dissolution, South Dakota law on disposition of property on dissolution applies;

(4) The choice of law governing the interpretation of the trust; and

(5) Any other matter that affects the property transferred to the trust and does not violate public policy or a statute imposing a criminal penalty.

Source: SL 2016, ch 231, § 37; SL 2018, ch 275, § 30.
S.D. Codified Laws § 55-14A-7 — SD Code / Title 55 / Chapter 14A / Section 55-14A-7
Reviewing compliance
Status: in_force

Compliance with this chapter is determined in light of the facts and circumstances existing at the time a decision is made or action is taken, and not by hindsight.

Source: SL 2007, ch 283, § 7.
S.D. Codified Laws § 55-1-39 — SD Code / Title 55 / Chapter 1 / Section 55-1-39
Bifurcation of trust
Status: in_force

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 extent of such support language;

(3) The remaining trust property shall be held as a discretionary interest;

(4) A support interest that includes mandatory language such as "shall" but is subsequently qualified by discretionary language, shall be classified as a discretionary interest and not as a support interest.

Source: SL 2007, ch 280, § 16.
S.D. Codified Laws § 55-13A-408 — SD Code / Title 55 / Chapter 13A / Section 55-13A-408
Insubstantial allocations not required
Status: in_force

If a trustee determines that an allocation between principal and income required by § 55-13A-409 , 55-13A-410 , 55-13A-411 , 55-13A-412 , or 55-13A-415 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in § 55-13A-104(c) applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in § 55-13A-104(d) and may be released for the reasons and in the manner described in § 55-13A-104(e). An allocation is presumed to be insubstantial if:

(1) The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than ten percent; or

(2) The value of the asset producing the receipt for which the allocation would be made is less than ten percent of the total value of the trust's assets at the beginning of the accounting period.

Source: SL 2007, ch 282, § 18.
S.D. Codified Laws § 55-4-17 — SD Code / Title 55 / Chapter 4 / Section 55-4-17
Unenforceable oral trust created by deed--Duties of intended trustee--Conveyance of real property interest under oral trust
Status: in_force

When an interest in real property is conveyed by deed to a person on a trust which is unenforceable on account of the statute of frauds and the intended trustee or his successor in interest still holds title but refuses to carry out the trust on account of the statute of frauds, the intended trustee or his successor in interest, except to the extent that the successor in interest is a bona fide purchaser of a legal interest in the real property in question, shall be under a duty to convey the interest in real property to the settlor or his successor in interest. A court having jurisdiction may prescribe the conditions upon which the interest shall be conveyed to the settlor or his successor in interest.

Source: SL 1943, ch 308, § 16; SDC Supp 1960, § 59.0516 (1).
S.D. Codified Laws § 55-1-3 — SD Code / Title 55 / Chapter 1 / Section 55-1-3
Express trust defined
Status: in_force

An express trust is an obligation arising out of a personal confidence reposed in and voluntarily accepted by one for the benefit of another.

Source: SDC 1939, § 59.0101.
S.D. Codified Laws § 55-13A-504 — SD Code / Title 55 / Chapter 13A / Section 55-13A-504
Transfers from income to reimburse principal
Status: in_force

(a) If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.

(b) Principal disbursements to which subsection (a) applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party:

(1) An amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;

(2) A capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;

(3) Disbursements made to prepare property for rental, including tenant allowances, leasehold improvements, and broker's commissions;

(4) Periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and

(5) Disbursements described in § 55-13A-502(a)(7).

(c) If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (a).

Source: SL 2007, ch 282, § 29.
S.D. Codified Laws § 55-13A-502 — SD Code / Title 55 / Chapter 13A / Section 55-13A-502
Disbursements from principal
Status: in_force

(a) A trustee shall make the following disbursements from principal:

(1) The remaining one-half of the disbursements described in § 55-13A-501(1) and (2);

(2) All of the trustee's compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale;

(3) Payments on the principal of a trust debt;

(4) Expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property;

(5) Premiums paid on a policy of insurance not described in § 55-13A-501(4) of which the trust is the owner and beneficiary;

(6) Estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and

(7) Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common law claims by third parties, and defending claims based on environmental matters.

(b) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.

Source: SL 2007, ch 282, § 27.
S.D. Codified Laws § 55-18-1 — SD Code / Title 55 / Chapter 18 / Section 55-18-1
Definitions
Status: in_force

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," a situation in which a representative's interest in the trust causes a significant likelihood that a reasonable person would disregard a representative's duty to a represented beneficiary. A conflict of interest, however, excludes:

(a) Any adversity, conflict or opposed interests substantially unrelated to the representative's interest in the trust;

(b) Any past situation which is not likely to re-occur; and

(c) Any conflict of interest which falls short of a material conflict of interest;

(3) "Co-representative," more than one simultaneously acting representative of the same class pursuant to § 55-18-9 , as when co-guardians are acting:

(4) "Conservator," a person appointed pursuant to chapter 29A-5 or equivalent provisions of another jurisdiction's laws including a temporary conservator, a guardian ad litem, and a limited conservator;

(5) "Fiduciary," a person defined by subdivision 21-22-1 (3), except as used in § 55-18-17 ;

(6) "Guardian," a person appointed pursuant to chapter 29A-5 or equivalent provisions of another jurisdiction's laws including a temporary guardian and a limited guardian;

(7) "Incapacitated" or "incapacity," lacking the capacity to meaningfully understand the matter in question because of a mental or physical impairment;

(8) "Interest," a beneficial interest as defined by subdivision 55-1-24 (1) but including the holder of a power of appointment, and any power to remove or replace a fiduciary or a representative;

(9) "Interested beneficiary," a person who, on the date the person's qualification is determined:

(a) Is a current distributee or permissible distributee of trust income or principal;

(b) Would be a distributee or permissible distributee of trust income or principal if the interests of the current distributees terminated on that date;

(c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date;

(d) Holds a power of appointment; or

(e) Would hold a power of appointment if the interests of the current distributees terminated on that date or the interests of the persons currently holding a power of appointment under this subdivision terminated on that date;

(10) "Knows" or "knowingly," actual knowledge of the fact in question;

(11) "Minor," any person who has not attained the age of eighteen. The term includes a minor with an incapacity;

(12) "Nonjudicial settlement," an agreement, release, or other action whether or not approved by a court, which may include, without limitation:

(a) The interpretation or construction of the terms of a trust;

(b) The approval of any fiduciary's report or accounting;

(c) Direction to any fiduciary to refrain from performing a particular act or the grant to a fiduciary of any necessary or desirable power;

(d) The resignation or appointment of any fiduciary;

(e) The determination of a fiduciary or a representative's compensation;

(f) The transfer of a trust's principal place of administration or situs;

(g) The liability of any fiduciary's action or omission relating to a trust;

(h) Partial or final settlement agreements regarding a trust or its administration; or

(i) The modification, amendment, reformation, or termination of a trust;

(13) "Notice" or "notifies," notice provided in accordance with § 55-2-24 ;

(14) "Notifier," a person who is undertaking notice or proposing consent with regard to a matter concerning a trust;

(15) "Power of appointment," a power defined by § 55-1-12 ;

(16) "Proceeding," any judicial or nonjudicial trust proceeding, accounting, termination, modification, reformation, decanting, settlement, nonjudicial settlement, and any proceeding conducted pursuant to chapter 21-22 or title 29A which concerns a trust;

(17) "Protected person," a person other than a minor for whom a guardian or conservator is appointed;

(18) "Reasonably available," with respect to a person, that the person can be identified and located with the exercise of reasonable diligence;

(19) "Representative," a person who may bind another person pursuant to § 55-18-9 ;

(20) "Trust," an express inter vivos or testamentary trust; and

(21) "Uninterested beneficiary," a beneficiary other than an interested beneficiary.

Source: SL 2017, ch 208, § 2; SL 2018, ch 275, § 31; SL 2019, ch 209, § 9; SL 2021, ch 207, § 3; SL 2023, ch 161, § 16.
S.D. Codified Laws § 55-2-6 — SD Code / Title 55 / Chapter 2 / Section 55-2-6
Adverse interest of trustee--Information to beneficiary--Removal of trustee
Status: in_force

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.
S.D. Codified Laws § 55-1A-29 — SD Code / Title 55 / Chapter 1A / Section 55-1A-29
Payment of sum distributable to minor or other beneficiary under legal disability--Methods
Status: in_force

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) Directly for the maintenance, education and general welfare of the beneficiary;

(4) To a parent of the beneficiary; or

(5) To anyone who has custody and care of the person of the beneficiary.

Source: SL 1979, ch 336, § 29; SL 1993, ch 213, § 253.
S.D. Codified Laws § 55-14A-2 — SD Code / Title 55 / Chapter 14A / Section 55-14A-2
Definitions
Status: in_force

In this chapter:

(1) "Charitable purpose" means the relief of poverty, the advancement of education or religion, the promotion of health, the promotion of a governmental purpose, or any other purpose the achievement of which is beneficial to the community.

(2) "Endowment fund" means an institutional fund or part thereof that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis. The term does not include assets that an institution designates as an endowment fund for its own use.

(3) "Gift instrument" means a record or records, including an institutional solicitation, under which property is granted to, transferred to, or held by an institution as an institutional fund.

(4) "Institution" means:

(A) A person, other than an individual, organized and operated exclusively for charitable purposes;

(B) A government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; and

(C) A trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated.

(5) "Institutional fund" means a fund held by an institution exclusively for charitable purposes. The term does not include:

(A) Program-related assets;

(B) A fund held for an institution by a trustee that is not an institution; or

(C) A fund in which a beneficiary that is not an institution has an interest, other than an interest that could arise upon violation or failure of the purposes of the fund.

(6) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(7) "Program-related asset" means an asset held by an institution primarily to accomplish a charitable purpose of the institution and not primarily for investment.

(8) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

Source: SL 2007, ch 283, § 2.
S.D. Codified Laws § 55-19-25 — SD Code / Title 55 / Chapter 19 / Section 55-19-25
Denial by custodian of request for disclosure or termination
Status: in_force

A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request.

Source: SL 2017, ch 209, § 25.
S.D. Codified Laws § 55-19-14 — SD Code / Title 55 / Chapter 19 / Section 55-19-14
Disclosure of assets to conservator of protected person
Status: in_force

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 communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian:

(1) A written request for disclosure in physical or electronic form;

(2) A certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and

(3) If requested by the custodian:

(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or

(b) Evidence linking the account to the protected person.

Source: SL 2017, ch 209, § 14.
S.D. Codified Laws § 55-17-12 — SD Code / Title 55 / Chapter 17 / Section 55-17-12
Bona fide purchasers
Status: in_force

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 property purchased by a bona fide purchaser from a spouse having the right to manage and control the property is acquired free of any claim of the other spouse. The effect of this subsection may not be varied by a South Dakota special spousal property trust.

Source: SL 2016, ch 231, § 40.
S.D. Codified Laws § 55-5-10 — SD Code / Title 55 / Chapter 5 / Section 55-5-10
Investment strategy--Productivity judged by whole portfolio
Status: in_force

The trustee shall pursue an investment strategy that considers both the reasonable production of income and safety of capital, consistent with the trustee's duty of impartiality and the purpose of the trust. Whether investments are underproductive or overproductive of income shall be judged by the portfolio as a whole and not as to any particular asset.

Source: SL 1995, ch 271, § 10.
S.D. Codified Laws § 55-4-32 — SD Code / Title 55 / Chapter 4 / Section 55-4-32
Relieving trustee of duties--Power of the court
Status: in_force

A court of competent jurisdiction may, for cause shown and upon notice to the beneficiaries, relieve a trustee from any or all of the duties and restrictions which would otherwise be placed upon him by this chapter, or wholly or partly excuse a trustee who has acted honestly and reasonably from liability for violations of the provisions of this chapter.

Source: SL 1943, ch 308, § 19; SDC Supp 1960, § 59.0519.
S.D. Codified Laws § 55-2-9 — SD Code / Title 55 / Chapter 2 / Section 55-2-9
Liability of trustee mingling trust property with his own
Status: in_force

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.
S.D. Codified Laws § 55-1A-34 — SD Code / Title 55 / Chapter 1A / Section 55-1A-34
Advance of money for protection of trust--Lien
Status: in_force

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 lien on the trust assets and may reimburse himself, with interest, out of the trust assets for the advances.

Source: SL 1979, ch 336, § 34.
S.D. Codified Laws § 55-16-15 — SD Code / Title 55 / Chapter 16 / Section 55-16-15
Application of chapter
Status: in_force

(1) Notwithstanding the provisions of §§ 55-16-9 to 55-16-14 , inclusive, but subject to subdivision (2) of this section, this chapter does not apply in any respect to any person to whom at the time of transfer the transferor is indebted on account of an agreement or order of court for the payment of support or alimony in favor of the transferor's spouse, former spouse, or children, or for a division or distribution of property in favor of the transferor's spouse or former spouse, to the extent of the debt.

(2) If the transferor is married at the time of the transfer, the provisions of §§ 55-16-9 to 55-16-14 , inclusive, and this chapter apply to:

(a) Any of the transferor's separate property transferred to the trust; and

(b) Any marital property transferred to the trust if the spouse or former spouse was provided with notice in the form set forth in subdivision (3) of this section, or executed a written consent to the transfer after being provided the information set forth in the notice.

(3) For purposes of the application of this section, a notice of transfer of property to a trust subject to this chapter:

(a) Shall also contain the following language, in capital letters, at or near the top of the notice:

YOUR SPOUSE IS CREATING A PERMANENT TRUST INTO WHICH PROPERTY IS BEING TRANSFERRED.

YOUR RIGHTS TO THIS PROPERTY MAY BE AFFECTED DURING YOUR MARRIAGE, UPON DIVORCE (INCLUDING THE PAYMENT OF CHILD SUPPORT OR ALIMONY OR A DIVISION OR DISTRIBUTION OF PROPERTY IN A DIVORCE), OR AT THE DEATH OF YOUR SPOUSE.

YOU HAVE A VERY LIMITED PERIOD OF TIME TO OBJECT TO THE TRANSFER OF PROPERTY INTO THIS TRUST.

YOU MAY, UPON REQUEST TO THE TRUSTEE AT THE ADDRESS BELOW, BE FURNISHED A COPY OF THE TRUST DOCUMENT.

IF YOU HAVE ANY QUESTIONS, YOU SHOULD IMMEDIATELY SEEK INDEPENDENT LEGAL ADVICE.

IF YOU FAIL TO OBJECT WITHIN THE REQUIRED TIME PERIOD, YOU WILL HAVE CONSENTED TO THE TRANSFER OF PROPERTY INTO THIS TRUST.

(b) Shall contain a description of the property being transferred to the trust and the name of the trust;

(c) May require that any person who is eligible to receive information pursuant to this section be bound by the duty of confidentiality that binds the trustee before receiving such information from the trustee; and

(d) Shall be provided by the transferor, the transferor's agent, the trustee, or other fiduciary of the trust.

(4) If a notice is provided under this section before the property is transferred, the period to commence an action under § 55-16-10 shall commence running on the date of the transfer. If a notice is provided after the date the property is transferred, the period to commence an action pursuant to § 55-16-10 commences running on the date the notice is provided. In no event may the period to commence an action to challenge a transfer under this section and § 55-16-10 exceed the period set forth in § 54-8A-9 .

(5) The exception contained in subdivision (1) of this section does not apply to any claim for forced heirship or legitime.

(6) Subdivisions (2) to (4), inclusive, of this section apply to any transfer made after June 30, 2014.

Source: SL 2005, ch 261, § 15; SL 2011, ch 212, § 17; SL 2013, ch 239, § 19; SL 2014, ch 226, § 20.
S.D. Codified Laws § 55-18-2 — SD Code / Title 55 / Chapter 18 / Section 55-18-2
Application of chapter to proceedings involving persons interested in trust
Status: in_force

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.
S.D. Codified Laws § 55-3-45 — SD Code / Title 55 / Chapter 3 / Section 55-3-45
Beneficiary approval of trustee's accounting--Alternative approval of trustee's accounting--Accounting defined
Status: in_force

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 § 55-2-24 , the distribution beneficiary is deemed to have approved such accounting of the trustee, and the trustee, absent fraud, intentional misrepresentation, or material omission, shall be released and discharged from any and all liability to all beneficiaries of the trust as to all matters set forth in such accounting. Alternatively, the trustee's accounting may be approved on behalf of all beneficiaries by a trust advisor or trust protector, or in accordance with § 55-18-9 if:

(1) Notice or information to the beneficiaries has been waived or modified in accordance with § 55-2-13 ; or

(2) Authorized under the terms of the governing instrument.

The provisions of chapter 55-18 apply to this section.

For purposes of this section, the term, accounting, means any interim or final report or other statement provided by a trustee reflecting all transactions, receipts, and disbursements during the reporting period and a list of assets as of the end of the period covered by the report or statement, and including written notice to the distribution beneficiary of the provisions of this section.

Source: SL 1998, ch 282, § 26; SL 2010, ch 232, § 4; SL 2017, ch 208, § 34; SL 2020, ch 206, § 15; SL 2023, ch 161, § 11.
S.D. Codified Laws § 55-2-8 — SD Code / Title 55 / Chapter 2 / Section 55-2-8
Presumption against trustee
Status: in_force

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 and under undue influence.

Source: SDC 1939, § 59.0113.
S.D. Codified Laws § 55-5-16 — SD Code / Title 55 / Chapter 5 / Section 55-5-16
Delegation of responsibilities to others
Status: in_force

A trustee has a duty to personally perform the responsibilities of the trusteeship except as a prudent person might delegate those responsibilities to others. In deciding whether, to whom, and in what manner to delegate fiduciary authority in the administration of a trust, and thereafter in monitoring agents, the trustee may seek the prior approval for the delegation from the settlor, a trust protector, or if the settlor is deceased, the majority of the current income or principal beneficiaries, or from the court. If such approval is given in writing by either the settlor, a trust protector, or if the settlor is deceased, the majority of the current income or principal beneficiaries, or by the court, the trustee is not liable for the acts of the person to whom the authority is delegated except in the cases of willful misconduct or gross negligence by the delegating trustee in the selection or monitoring of the agent.

Source: SL 1996, ch 284, § 3; SL 1998, ch 282, § 42; SL 2011, ch 212, § 2; SL 2018, ch 275, § 27; SL 2021, ch 207, § 14.
S.D. Codified Laws § 55-18-6 — SD Code / Title 55 / Chapter 18 / Section 55-18-6
Notice or consent respecting co-representatives
Status: in_force

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.

However, when a representative is acting pursuant to subdivision 55-18-9(3), (4), or (7), consent from or notice to one representative is sufficient to bind the person represented.

Source: SL 2017, ch 208, § 6.
S.D. Codified Laws § 55-1-21.3 — SD Code / Title 55 / Chapter 1 / Section 55-1-21.3
Court order where fulfillment of purposes are impossible, inexpedient, or unlawful
Status: in_force

If the court finds that the fulfillment of the purposes are or have become impossible, inexpedient, or unlawful, the court shall make an order directing that the trust be administered in such manner as, in the judgment of the court, will, as nearly as can be, accomplish the general purposes, the objects, and intentions of the trustor.

Source: SL 2018, ch 275, § 6.
S.D. Codified Laws § 55-16-9 — SD Code / Title 55 / Chapter 16 / Section 55-16-9
Creditors' actions limited to transfers with intent to defraud
Status: in_force

Notwithstanding any other provision of law, including chapter 54-8A , 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 the subject of a qualified disposition or for avoidance of a qualified disposition unless the settlor's transfer of property was made with the intent to defraud that specific creditor. In the event of any conflict between any provision of this chapter and any provision of chapter 54-8A or any other provision of law similar to any provision of chapter 54-8A , the provisions of this chapter control and prevail.

Source: SL 2005, ch 261, § 9; SL 2008, ch 257, § 16; SL 2014, ch 226, § 21.
S.D. Codified Laws § 55-4-51.3 — SD Code / Title 55 / Chapter 4 / Section 55-4-51.3
Form of certificate of trust in support of a real property transaction
Status: in_force

A certificate of a trustee or of trustees of a trust in support of a real property transaction may be substantially in the following form:

STATE OF SOUTH DAKOTA )

______________________________________________________________________.

______________________________________________________________________

______________________________________________________________________.

______________________________________________________________________,

______________________________________________________________________,

and further contains the following provisions (optional):

______________________________________________________________________.

The number of trustees required to join in an action by the provisions of the trust instrument or Will is __________.

If revocable, the trust has not been revoked.

______________________________________________________________________.

______________________________________________________________________.

On this, the _____ day of __________, 20_____, before me, the undersigned officer, personally appeared, known to me or satisfactorily proven to be the person whose name is subscribed to the within instrument and acknowledged that she/he executed the same for the purposes therein contained.

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

Source: SL 2010, ch 232, § 10; SL 2011, ch 212, § 16.
S.D. Codified Laws § 55-19-10 — SD Code / Title 55 / Chapter 19 / Section 55-19-10
Disclosure of other digital assets of principal
Status: in_force

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 sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:

(1) A written request for disclosure in physical or electronic form;

(2) An original or copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;

(3) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and

(4) If requested by the custodian:

(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or

(b) Evidence linking the account to the principal.

Source: SL 2017, ch 209, § 10.
S.D. Codified Laws § 55-19-2 — SD Code / Title 55 / Chapter 19 / Section 55-19-2
Applicability generally
Status: in_force

The provisions of this chapter apply to:

(1) Any fiduciary acting under a will or power of attorney executed before, on, or after July 1, 2017;

(2) Any personal representative acting for a decedent who died before, on, or after July 1, 2017;

(3) Any conservatorship proceeding commenced before, on, or after July 1, 2017; and

(4) A trustee acting under a trust created before, on, or after July 1, 2017.

Source: SL 2017, ch 209, § 2.
S.D. Codified Laws § 55-17-7 — SD Code / Title 55 / Chapter 17 / Section 55-17-7
Types of transfers to special spousal trust
Status: in_force

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, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature and the South Dakota special spousal trust is designated as a beneficiary to receive the property under the transfer. The property is considered the surviving spouse's property that is not South Dakota special spousal property.

Source: SL 2016, ch 231, § 35.
S.D. Codified Laws § 55-17-2 — SD Code / Title 55 / Chapter 17 / Section 55-17-2
Required language
Status: in_force

A South Dakota special spousal trust shall contain the following language in capital letters at the beginning of the trust:

Source: SL 2016, ch 231, § 30.
S.D. Codified Laws § 55-4-37 — SD Code / Title 55 / Chapter 4 / Section 55-4-37
Liability for fiduciary's partnership interest limited
Status: in_force

If permitted by the trust instrument or will under which a fiduciary serves, or by order of a court having jurisdiction of the estate or trust, a fiduciary may enter into a partnership agreement or arrangement with others or accept the assignment of, or otherwise acquire, hold, and dispose, of an interest in a partnership, and in so doing may become either a general or a limited partner. If the fiduciary becomes a partner, as to creditors of, or claimants against, the partnership and as to the other members of the partnership, the liability, if any, of the fiduciary for the debts and other liabilities of the partnership, whether arising under contract, tort, or otherwise, are limited to the assets of the trust or estate, or so much thereof as may be necessary to discharge such debts and liabilities.

Source: SL 1996, ch 285.
S.D. Codified Laws § 55-5A-2 — SD Code / Title 55 / Chapter 5A / Section 55-5A-2
Certificate of appointing court or clerk attached--Contents
Status: in_force

Before any instrument executed by any fiduciary or officer as authorized in § 55-5A-1 shall be effective, there shall be attached thereto a certificate executed by the court or clerk making the appointment, with seal attached, if such officer has a seal. Such certificate shall state the name of the court making such appointment, the date of appointment, and that the authority of such fiduciary or officer is still in full force and effect.

Source: SL 1976, ch 179, § 1.
S.D. Codified Laws § 55-9-6 — SD Code / Title 55 / Chapter 9 / Section 55-9-6
Restrictions to avoid taxability of income--Definition of terms
Status: in_force

Terms as used in §§ 55-9-6 to 55-9-14 , inclusive shall have the following meaning:

(1) "Charitable trust," as defined in section 4947 (a)(1) of the Internal Revenue Code;

(2) "Excess business holdings," as defined in section 4943 (c) of the Internal Revenue Code;

(3) "Internal Revenue Code," the United States Internal Revenue Code of 1954, as amended;

(4) "Private foundation," as defined in section 509 (a) of the Internal Revenue Code;

(5) "Self - dealing," as defined in section 4941 (d) of the Internal Revenue Code;

(6) "Split - interest," as defined in section 4947 (a)(2) of the Internal Revenue Code;

(7) "Taxable expenditure," as defined in section 4945 (d) of the Internal Revenue Code;

(8) "Trustee," a corporation, individual, or other legal entity acting as an original, added, or successor trustee of a testamentary or inter vivos trust estate, whichever in a particular case shall be appropriate.

Source: SL 1972, ch 259, § 1.
S.D. Codified Laws § 55-1A-15 — SD Code / Title 55 / Chapter 1A / Section 55-1A-15
Razing or erection of party walls or buildings
Status: in_force

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.
S.D. Codified Laws § 55-1-50 — SD Code / Title 55 / Chapter 1 / Section 55-1-50
Attorneys fees and costs
Status: in_force

The court may award attorneys fees and costs to the prevailing party in an action involving the enforceability of a no contest provision.

Source: SL 2012, ch 233, § 12.
S.D. Codified Laws § 55-1A-31 — SD Code / Title 55 / Chapter 1A / Section 55-1A-31
Employment of agents and assistants
Status: in_force

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 acting personally, employ one or more agents to perform any act of administration, whether or not such act is discretionary.

Source: SL 1979, ch 336, § 31.
S.D. Codified Laws § 55-12-4 — SD Code / Title 55 / Chapter 12 / Section 55-12-4
Continuance of operation--Cemetery principal fund deposits
Status: in_force

To continue to operate as a perpetual care cemetery, any such organization shall set aside and deposit in the cemetery principal fund not less than the following amounts for lots of interment space thereafter sold or disposed of:

(1) A minimum of twenty percent of the gross selling price with a minimum of twenty dollars for each adult burial space, whichever is the greater.

(2) A minimum of twenty percent of the gross selling price for each child's space with a minimum of five dollars for each space up to forty-two inches in length or ten dollars for each space up to sixty inches in length, whichever is the greater.

(3) A minimum of twenty percent of the gross selling price with a minimum of one hundred dollars for each crypt in a public mausoleum, whichever is the greater.

(4) A minimum of twenty percent of the gross selling price with a minimum of ten dollars for each inurnment niche in a public columbarium.

No amount of the principal in the principal cemetery fund may be withdrawn or transferred out of the cemetery principal fund.

Source: SL 1955, ch 97, § 3; SDC Supp 1960, § 11.19A03; SL 2014, ch 228, § 3, eff. Mar. 28, 2014.
S.D. Codified Laws § 55-11-4 — SD Code / Title 55 / Chapter 11 / Section 55-11-4
Financial institution receiving money in trust--Acknowledgment on copy of prearranged funeral contract
Status: in_force

When a banking institution, federal credit union or a savings and loan association has received money in trust under § 55-11-2 , it shall acknowledge receipt thereof upon the copies of the contract for said prearranged funerals.

Source: SL 1953, ch 496, § 3; SDC Supp 1960, § 27.1411; SL 1967, ch 104, § 3; SL 1981, ch 356; SL 1986, ch 408, § 15.
S.D. Codified Laws § 55-1-22.4 — SD Code / Title 55 / Chapter 1 / Section 55-1-22.4
Application of §§55-1-21to55-1-21.9to hybrid purpose trust--Exceptions
Status: in_force

The provisions of §§ 55-1-21 to 55-1-21.9 , inclusive, apply to a hybrid purpose trust except that:

(1) Under § 55-1-21.1 , except as otherwise provided in the governing instrument, a trust as described in subdivision 55-1-21(1) terminates when no living animal is covered by the trust unless the trust may continue for the benefit of the beneficiaries; and

(2) Under § 55-1-21.2 , a court has no power to reduce the amount of trust property intended for or allocated to any beneficiaries or any charitable purposes.

Source: SL 2018, ch 275, § 18.
S.D. Codified Laws § 55-1-9 — SD Code / Title 55 / Chapter 1 / Section 55-1-9
Implied trust created by transfer of property in violation of trust
Status: in_force

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).
S.D. Codified Laws § 55-18-22 — SD Code / Title 55 / Chapter 18 / Section 55-18-22
Unauthorized practice of law not permitted
Status: in_force

Nothing in this chapter, permits the unauthorized practice of law or diminishes the provisions of § 16-16-19 .

Source: SL 2017, ch 208, § 22.
S.D. Codified Laws § 55-1B-13 — SD Code / Title 55 / Chapter 1B / Section 55-1B-13
Tax trust advisor--Powers and discretions
Status: in_force

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 other interested party, fiduciary, and excluded fiduciary. In addition to the powers and discretions granted to the tax trust advisor in the governing instrument, the tax trust advisor may also exercise any of the following powers and discretions to the extent the exercise is not prohibited under the terms of the governing instrument:

(1) Direct the trustee with respect to tax matters related to the trust, including tax elections, tax returns to be filed, positions to be taken on tax returns, tax payments to be made, and the anticipated tax impact to the trust or a beneficiary of any transaction involving the trust, including:

(a) The retention, purchase, sale, exchange, or tender of any asset of the trust;

(b) Any contribution to or distribution from the trust: or

(c) Any contribution to or distribution from an entity owned by the trust;

(2) Direct the trustee to rely on any tax information received pursuant to § 55-2-23 ;

(3) Select one or more tax advisors to prepare tax returns or other related filings;

(4) Direct the trustee to sign and file tax returns;

(5) Direct the trustee with respect to any additional powers and discretions over tax-related matters provided in the governing instrument; and

(6) Direct the trustee as to any tax-related powers referenced in chapter 55-1A .

Source: SL 2025, ch 196, § 5.
S.D. Codified Laws § 55-3-46.1 — SD Code / Title 55 / Chapter 3 / Section 55-3-46.1
Effect of laws, rules, or orders of other states on a trust or disposition of property
Status: in_force

No trust governed by the laws of this state and no disposition of property to be held upon the terms of such trust is void, voidable, liable to be set aside, or defective in any manner by reason that the law or public policy of any other state does not recognize or limits the validity of the trust or the validity or enforceability of any or all of the terms of the trust, so long as such terms are valid and enforceable under the laws and public policy of this state.

Source: SL 2021, ch 207, § 6.
S.D. Codified Laws § 55-10A-10 — SD Code / Title 55 / Chapter 10A / Section 55-10A-10
Designation of initial custodian
Status: in_force

An instrument in the following form satisfies the requirements of subdivisions 55-10A-9(1)(a) and (7):

I, ______________ (name of transferor or name and representative capacity if a fiduciary) hereby transfer to ______________ (name of custodian), as custodian for ______________ (name of minor) under the South Dakota Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it).

Source: SL 1986, ch 409, § 10.
S.D. Codified Laws § 55-14A-1 — SD Code / Title 55 / Chapter 14A / Section 55-14A-1
Short title
Status: in_force

This chapter may be cited as the Uniform Prudent Management of Institutional Funds Act.

Source: SL 2007, ch 283, § 1.
S.D. Codified Laws § 55-3-41 — SD Code / Title 55 / Chapter 3 / Section 55-3-41
Qualified person defined
Status: in_force

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 is in this state, who does not have a present intention of moving from this state, and who has the intention of returning to this state when away;

(2) A trust company that is organized under Title 51A or under federal law and that has its principal place of business in this state; or

(3) A bank or savings association that possesses and exercises trust powers, has its principal place of business in this state, and the deposits of which are insured by the Federal Deposit Insurance Corporation.

Source: SL 1998, ch 282, § 22.
S.D. Codified Laws § 55-1-22.5 — SD Code / Title 55 / Chapter 1 / Section 55-1-22.5
Discretion of trustee of hybrid purpose trust
Status: in_force

Except as otherwise provided in the governing instrument, a trustee of a hybrid purpose trust is vested with full discretion in administering the trust and considering the best interests of the beneficiaries and the purposes of the trust.

Source: SL 2018, ch 275, § 19.
S.D. Codified Laws § 55-4-1 — SD Code / Title 55 / Chapter 4 / Section 55-4-1
Definition of terms
Status: in_force

Terms used in this chapter mean:

(1) "Affiliate," any person directly or indirectly controlling or controlled by another person, or any person under direct or indirect common control with another person. It includes any person with whom a trustee has an express or implied agreement regarding the purchase of trust investments by each from the other, directly or indirectly, except a broker or stock exchange;

(2) "Person," an individual, a corporation, a partnership, a limited liability company, an association, a joint stock company, a business trust, a trust, an unincorporated organization, or two or more persons having a joint or common interest;

(3) "Relative," a spouse, ancestor, descendant, brother, or sister;

(4) "Trust," an express trust only;

(5) "Trustee," includes trustees, a corporate as well as a natural person and a successor or substitute trustee.

Source: SL 1943, ch 308, § 1; SDC Supp 1960, § 59.0501; SL 1998, ch 282, § 41; SL 2015, ch 240, § 19.
S.D. Codified Laws § 55-7-13 — SD Code / Title 55 / Chapter 7 / Section 55-7-13
Act not retroactive
Status: in_force

The provisions of §§ 55-7-2 to 55-7-15 , inclusive, shall not apply to transactions taking place prior to July 1, 1943.

Source: SL 1943, ch 19, § 11; SDC Supp 1960, § 6.0711.
S.D. Codified Laws § 55-3-39 — SD Code / Title 55 / Chapter 3 / Section 55-3-39
When state law or jurisdiction provision valid, effective, and conclusive
Status: in_force

Except as expressly provided by the terms of a governing instrument or by a court order, a general law or a state jurisdiction provision stating that the laws of this state govern is valid, effective, and conclusive for the trust if all of the following are true:

(1) Some or all of the trust assets are deposited in this state or physical evidence of such assets is held in this state and the trust is being administered by a qualified person; in this subdivision, deposited in this state, includes being held in a checking account, time deposit, certificate of deposit, brokerage account, trust company fiduciary account, or other similar account or deposit that is located in this state including South Dakota investments;

(2) A trustee is a qualified person who is designated as a trustee under the governing instrument, a successor trusteeship, or designated by a court having jurisdiction over the trust; and

(3) The administration, for example, physically maintaining trust records in this state and preparing or arranging for the preparation of, on an exclusive basis or a nonexclusive basis, an income tax return that must be filed by the trust, occurs wholly or partly in this state.

The State of South Dakota and its courts have jurisdiction over a trust created in a foreign jurisdiction if the administration of the trust meets the three requirements set forth in this section.

Nothing in this section may be construed to be the exclusive means of providing a valid effective and conclusive state jurisdiction provision.

Source: SL 1998, ch 282, § 20; SL 2004, ch 312, § 6; SL 2010, ch 232, § 3.
S.D. Codified Laws § 55-1B-1.1 — SD Code / Title 55 / Chapter 1B / Section 55-1B-1.1
Governing instrument may provide trust advisor or trust protector with powers and immunities of trustee
Status: in_force

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 governing instrument. Unless the governing instrument provides otherwise, a trust advisor or trust protector has no greater liability to any person than would a trustee holding or benefiting from the rights, powers, privileges, benefits, immunities, or authority provided or allowed by the governing instrument to such trust advisor or trust protector.

Source: SL 2011, ch 212, § 4.
S.D. Codified Laws § 55-8-4 — SD Code / Title 55 / Chapter 8 / Section 55-8-4
Registration of security in name of fiduciary
Status: in_force

A corporation or transfer agent registering a security in the name of a person who is a fiduciary or who is described as a fiduciary is not bound to inquire into the existence, extent, or correct description of the fiduciary relationship; and thereafter the corporation and its transfer agent may assume without inquiry that the newly registered owner continues to be the fiduciary until the corporation or transfer agent receives written notice that the fiduciary is no longer acting as such with respect to the particular security.

Source: SL 1961, ch 22, § 2.
S.D. Codified Laws § 55-13A-413 — SD Code / Title 55 / Chapter 13A / Section 55-13A-413
Property not productive of income
Status: in_force

(a) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under § 55-13A-104 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by § 55-13A-104(a). The trustee may decide which action or combination of actions to take.

(b) In cases not governed by subsection (a), proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.

Source: SL 2007, ch 282, § 23.
S.D. Codified Laws § 55-1-22.2 — SD Code / Title 55 / Chapter 1 / Section 55-1-22.2
Beneficiaries' share of a hybrid purpose trust
Status: in_force

The beneficiaries' share of a hybrid purpose trust is governed by §§ 43-5-8 and 43-6-7 .

Source: SL 2018, ch 275, § 16.
S.D. Codified Laws § 55-18-23 — SD Code / Title 55 / Chapter 18 / Section 55-18-23
Provisions of governing instrument
Status: in_force

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 person or class of persons while that designee is serving as a trustee or co-trustee of such trust.

A governing instrument which authorizes a person or fiduciary to appoint a representative may also identify or describe a person, several persons, a class of persons, or a description of persons who may not be appointed as representatives as to all or certain represented persons or matters or during a period of time.

Source: SL 2017, ch 208, § 23.
S.D. Codified Laws § 55-11-5.1 — SD Code / Title 55 / Chapter 11 / Section 55-11-5.1
Return of payments required on revocation under contract with guaranteed price
Status: in_force

A person who revokes a revocable trust under a contract providing a guaranteed price is entitled to receive one hundred percent of all money paid into trust under the contract together with one hundred percent of accrued interest unless a greater amount is specified in the contract.

Source: SL 1981, ch 355, § 3; SL 1986, ch 408, § 4.
S.D. Codified Laws § 55-1-22.1 — SD Code / Title 55 / Chapter 1 / Section 55-1-22.1
Separate shares for beneficiaries and purposes to be maintained in hybrid purpose trust
Status: in_force

In a hybrid purpose trust when the interests of the beneficiaries and purposes are concurrent, the trustee shall maintain not less than two separate shares, one for the beneficiaries; and a second for the purposes, and the trustee may be liable to the beneficiaries for the actual damages caused thereby, if any, for failing to do so.

Source: SL 2018, ch 275, § 15.
S.D. Codified Laws § 55-2-2 — SD Code / Title 55 / Chapter 2 / Section 55-2-2
Trustee not to use property for his own benefit--Profit of trustee from use of property, extent of liability
Status: in_force

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 of the trust property, and if he has disposed thereof, to replace it with its fruits or to account for its proceeds with interest.

Source: SDC 1939, § 59.0107.
S.D. Codified Laws § 55-1-59 — SD Code / Title 55 / Chapter 1 / Section 55-1-59
Trust registration form
Status: in_force

The trust registration form may be substantially similar to the following form:

State of Court Dakota _______________ Judicial Circuit

Trustee hereby acknowledges this trusteeship and submits to the jurisdiction of the court in any proceeding relating to the trust that may be initiated by any interested person while the trust remains registered, providing that notice is given as provided by law.

The trust (has) (has not) been registered in another jurisdiction. (If registered elsewhere, state where other registration was made.)

Note: If a trust has been registered elsewhere, registration in this state is ineffective until either the earlier registration is released by order of the court where prior registration occurred or an instrument executed by the trustee and all current income and principal beneficiaries is filed with the registration in this state.

The trust is: (Check one and fill in the blanks.)

Source: SL 2017, ch 204, § 11.
S.D. Codified Laws § 55-19-24 — SD Code / Title 55 / Chapter 19 / Section 55-19-24
Custodian notice to user
Status: in_force

A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.

Source: SL 2017, ch 209, § 24.
S.D. Codified Laws § 55-7-8 — SD Code / Title 55 / Chapter 7 / Section 55-7-8
Bank account in name of principal--Check drawn by fiduciary--Bank's liability to principal
Status: in_force

If a check is drawn upon the account of his principal in a bank by a fiduciary who is empowered to draw checks upon his principal's account, the bank is authorized to pay such check without being liable to the principal, unless the bank pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in drawing such check, or with knowledge of such facts that its action in paying the check amounts to bad faith. If, however, such a check is payable to the drawee bank and is delivered to it in payment of or as security for a personal debt of the fiduciary to it, the bank is liable to the principal if the fiduciary in fact commits a breach of its obligation as fiduciary in drawing or delivering the check.

Source: SL 1943, ch 19, § 8; SDC Supp 1960, § 6.0708.
S.D. Codified Laws § 55-1-29 — SD Code / Title 55 / Chapter 1 / Section 55-1-29
Trust property not subject to personal obligations of trustee
Status: in_force

Trust property is not subject to the personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.

Source: SL 2007, ch 280, § 6.
S.D. Codified Laws § 55-18-11 — SD Code / Title 55 / Chapter 18 / Section 55-18-11
Refusal to act as representative
Status: in_force

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.

The governing instrument may specify a time in which the representative may decline to act as a representative.

A representative may waive in writing the representative's right to decline to act in the matter in question.

Source: SL 2017, ch 208, § 11.
S.D. Codified Laws § 55-4-29 — SD Code / Title 55 / Chapter 4 / Section 55-4-29
Existing law as to charitable immunity not changed by law as to tort liability of trust estate
Status: in_force

Nothing in §§ 55-4-25 to 55-4-28 , inclusive, shall be construed to change the existing law with regard to the liability of trustees of charitable trusts for torts of themselves or their employees.

Source: SL 1943, ch 308, § 14; SDC Supp 1960, § 59.0514.
S.D. Codified Laws § 55-12-8.1 — SD Code / Title 55 / Chapter 12 / Section 55-12-8.1
Permissible uses of proceeds of income transferred to earnings fund
Status: in_force

The proceeds arising from the income transferred to the earnings fund pursuant to § 55-12-8 for the care and maintenance of the cemetery may only be used for protecting, preserving, improving, and embellishing the cemetery and its appurtenances; preserving and caring, and marking of abandoned or neglected graves; the repairing of monuments or gravestones; and may not be used for any other purpose.

Source: SL 2019, ch 210, § 1.
S.D. Codified Laws § 55-1A-14 — SD Code / Title 55 / Chapter 1A / Section 55-1A-14
Repairs by trustee--Removal or demolition
Status: in_force

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.
S.D. Codified Laws § 55-18-16 — SD Code / Title 55 / Chapter 18 / Section 55-18-16
Findings regarding conflict of interest in judicial and nonjudicial proceedings--Immunity of representative from liability
Status: in_force

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 circumstances and order that the representative may act as a representative notwithstanding the conflict of interest or potential conflict of interest.

The court's findings pursuant to this section are binding and conclusive with regard to the matter in question and, to the extent ordered by the court, absolve the representative of liability.

In a nonjudicial proceeding, unless otherwise provided in the governing instrument, the trustee may find that a representative's conflict of interest or potential conflict of interest is immaterial in view of the facts and circumstances and direct the representative to act as a representative notwithstanding the conflict of interest or potential conflict of interest.

The trustee's findings pursuant to this section are binding and conclusive with regard to the matter in question and, to the extent provided by the trustee in writing, absolve the representative of liability.

Source: SL 2017, ch 208, § 16; SL 2018, ch 275, § 37.
S.D. Codified Laws § 55-1B-10 — SD Code / Title 55 / Chapter 1B / Section 55-1B-10
Powers and discretions of investment trust advisor
Status: in_force

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 person and any other interested party, fiduciary, and excluded fiduciary. In addition to the powers and discretions granted to the investment trust advisor in the governing instrument, the investment trust advisor may also exercise any of the following powers and discretions to the extent such exercise is not prohibited under the terms of the governing instrument:

(1) Direct the trustee with respect to the retention, purchase, sale, exchange, tender, or other transaction affecting the ownership thereof or rights therein of trust investments. These powers include the pledge or encumbrance of trust property, lending of trust assets, either secured or unsecured, at terms defined by the investment trust advisor to any party including beneficiaries of the trust and the investment and reinvestment of principal and income of the trust;

(2) Vote proxies for securities held in trust;

(3) Select one or more investment advisers, managers, or counselors, including the trustee, and delegate to them any of its powers;

(4) Direct the trustee with respect to any additional powers and discretions over investment and management of trust assets provided in the governing instrument;

(5) Direct the trustee as to the value of nonpublicly traded trust investments;

(6) Direct the trustee as to any investment or management power referenced in chapter 55-1A ; and

(7) Exercise the powers granted to an investment trust advisor in § 55-2-13 .

Source: SL 2005, ch 260, § 6; SL 2012, ch 233, § 6; SL 2014, ch 226, § 17; SL 2020, ch 206, § 9.
S.D. Codified Laws § 55-18-24 — SD Code / Title 55 / Chapter 18 / Section 55-18-24
Construction with chapter29A-1
Status: in_force

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.
S.D. Codified Laws § 55-1-21.8 — SD Code / Title 55 / Chapter 1 / Section 55-1-21.8
Distribution of property upon termination of purpose of trust
Status: in_force

Upon termination of a purpose trust, the trustee shall distribute any remaining trust property as directed in the governing instrument. Only in the event that the governing instrument is silent shall the trustee, upon termination of a purpose trust, distribute any remaining trust property as follows:

(1) If the trust was created in a nonresiduary clause in a testator's will and the will fails to direct the distribution of unexpended trust property, then under the residuary clause of the testator's will, and for the purposes of § 29A-2-707 , the residuary clause is treated as creating a future interest under the terms of a trust; and

(2) Otherwise, to the trustor's heirs under § 29A-2-711 .

Source: SL 2018, ch 275, § 11.
S.D. Codified Laws § 55-10A-24 — SD Code / Title 55 / Chapter 10A / Section 55-10A-24
Effect on existing custodianships
Status: in_force

Any transfer of custodial property as now defined in this chapter made before July 1, 1986 is validated notwithstanding that there was no specific authority in the Uniform Gifts to Minors Act of South Dakota for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.

This chapter applies to all transfers made before July 1, 1986 in a manner and form prescribed in the Uniform Gifts to Minors Act, except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on July 1, 1986.

Sections 55-10A-1 and 55-10A-22 , with respect to the age of a minor for whom custodial property is held under this chapter do not apply to custodial property held in a custodianship that terminated because of the minor's attainment of the age of eighteen after July 1, 1968, and before July 1, 1986.

Source: SL 1986, ch 409, § 24.
S.D. Codified Laws § 55-3-46 — SD Code / Title 55 / Chapter 3 / Section 55-3-46
Effect of the laws, rules, or orders of foreign country on trust or disposition of property
Status: in_force

No trust with South Dakota situs or governed by the laws of the State of South Dakota and no disposition of property to be held upon the terms of such trust is void, voidable, liable to be set aside, or defective in any manner by reason that:

(1) The law of any foreign country, as defined in subdivision 10-43-1(6), prohibits or does not recognize the concept of a trust; or

(2) The trust or disposition:

(a) Avoids or defeats any right, claim, or interest conferred by the law of a foreign country upon any person by reason of a personal relationship to the trustor or by way of heirship rights; or

(b) Contravenes any rule or law of a foreign country or any foreign country's judicial or administrative order or action intended to recognize, protect, enforce, or give effect to such a right, claim, or interest.

Source: SL 2005, ch 260, § 8.
S.D. Codified Laws § 55-19-3 — SD Code / Title 55 / Chapter 19 / Section 55-19-3
Applicability to custodians and employer assets used by employee
Status: in_force

This chapter applies to a custodian if the user resides in this state or resided in this state at the time of the user's death. This chapter does not apply to any digital asset of an employer used by an employee in the ordinary course of the employer's business.

Source: SL 2017, ch 209, § 3.
S.D. Codified Laws § 55-16-1 — SD Code / Title 55 / Chapter 16 / Section 55-16-1
Definitions
Status: in_force

Terms used in this chapter mean:

(1) "Claim," a right to payment, whether or not the right is reduced to judgment liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured;

(2) "Creditor," with respect to a transferor, a person who has a claim;

(3) "Debt," liability on a claim;

(4) "Disposition," a transfer, conveyance, or assignment of property, including a change in the legal ownership of property occurring upon the substitution of one trustee for another or the addition of one or more new trustees, or the exercise of a power so as to cause a transfer of property to a trustee or trustees. The term does not include the release or relinquishment of an interest in property that theretofore was the subject of a qualified disposition;

(5) "Property," real property, personal property, and interests in real or personal property;

(6) "Qualified disposition," a disposition by or from a transferor to a qualified person or qualified persons, without consideration or for less than fair market value, by means of a trust instrument;

(7) "Spouse" and "former spouse," only persons to whom the transferor was married at, or before, the time the qualified disposition is made;

(8) "Transferor," any person as an owner of property; as a holder of a power of appointment which authorizes the holder to appoint in favor of the holder, the holder's creditors, the holder's estate, or the creditors of the holder's estate; or as a trustee, directly or indirectly, makes a disposition or causes a disposition to be made.

The terms, transferor and beneficiary, may be any person as defined in subdivision 55-4-1(2).

Source: SL 2005, ch 261, § 1; SL 2015, ch 240, § 20; SL 2018, ch 275, § 28.
S.D. Codified Laws § 55-3-11 — SD Code / Title 55 / Chapter 3 / Section 55-3-11
Investment of money by trustee--Interest, simple or compound, on omission to invest trust moneys
Status: in_force

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 compound interest thereon if it is willful.

Source: SDC 1939, § 59.0207.
S.D. Codified Laws § 55-13-13 — SD Code / Title 55 / Chapter 13 / Section 55-13-13
Charges against income and principal
Status: in_force

(a) The following charges shall be made against income:

(1) Ordinary expenses incurred in connection with the administration, management, or preservation of the trust property, including regularly recurring taxes assessed against any portion of the principal, water rates, premiums on insurance taken upon the interests of the income beneficiary, remainderman, or trustee, interest paid by the trustee, and ordinary repairs;

(2) A reasonable allowance for depreciation on property subject to depreciation under generally accepted accounting principles, but no allowance shall be made for depreciation of that portion of any real property used by a beneficiary as a residence or for depreciation of any property held by the trustee on July 1, 1984 for which the trustee is not then making an allowance for depreciation;

(3) One - half of court costs, attorney's fees, and other fees on periodic judicial accounting, unless the court directs otherwise;

(4) Court costs, attorney's fees, and other fees on other accountings or judicial proceedings if the matter primarily concerns the income interest, unless the court directs otherwise;

(5) One - half of the trustee's regular compensation, whether based on a percentage of principal or income, and all expenses reasonably incurred for current management of principal and application of income;

(6) Any tax levied upon receipts defined as income under this chapter or the trust instrument and payable by the trustee.

(b) If charges against income are of unusual amount, the trustee may by means of reserves or other reasonable means charge them over a reasonable period of time and withhold from distribution sufficient sums to regularize distributions.

(c) The following charges shall be made against principal:

(1) Trustee's compensation not chargeable to income under subsections (a)(4) and (a)(5), special compensation of trustees, expenses reasonably incurred in connection with principal, court costs and attorney's fees primarily concerning matters of principal, and trustee's compensation computed on principal as an acceptance, distribution, or termination fee;

(2) Charges not provided for in subsection (a), including the cost of investing and reinvesting principal, the payments on principal of an indebtedness (including a mortgage amortized by periodic payments of principal), expenses for preparation of property for rental or sale, and, unless the court directs otherwise, expenses incurred in maintaining or defending any action to construe the trust or protect it or the property or assure the title of any trust property;

(3) extraordinary repairs or expenses incurred in making a capital improvement to principal, including special assessments, but, a trustee may establish an allowance for depreciation out of income to the extent permitted by subsection (a)(2) and by § 55-13-8 ;

(4) Any tax levied upon profit, gain, or other receipts allocated to principal notwithstanding denomination of the tax as an income tax by the taxing authority;

(5) If an estate or inheritance tax is levied in respect of a trust in which both an income beneficiary and a remainderman have an interest, any amount apportioned to the trust, including interest and penalties, even though the income beneficiary also has rights in the principal.

(d) Regularly recurring charges payable from income shall be apportioned to the same extent and in the same manner that income is apportioned under § 55-13-4 .

Source: SL 1984, ch 323, § 13.
S.D. Codified Laws § 55-4-4 — SD Code / Title 55 / Chapter 4 / Section 55-4-4
Liability of trustee not joining in exercise of power
Status: in_force

No trustee who has not joined in exercising a power shall be liable to the beneficiaries or to others for the consequences of such exercise, nor shall a dissenting trustee be liable for the consequences of an act in which he joins at the direction of the majority trustees, if he expressed his dissent in writing to any of his cotrustees at or before the time of such joinder.

Source: SL 1943, ch 308, § 11; SDC Supp 1960, § 59.0511 (1).
S.D. Codified Laws § 55-1-14 — SD Code / Title 55 / Chapter 1 / Section 55-1-14
Interest in existing trust--Transfer by operation of law or written instrument
Status: in_force

An interest in an existing trust can be transferred only by operation of law or by a written instrument subscribed by the person making the transfer or by his agent.

Source: SDC 1939, § 59.0118.
S.D. Codified Laws § 55-8-3 — SD Code / Title 55 / Chapter 8 / Section 55-8-3
Application of chapter
Status: in_force

This chapter applies to the rights and duties of a person other than the corporation and its transfer agents with regard to acts and omissions in this state in connection with the acquisition, disposition, assignment, or transfer of a security by or to a fiduciary and of a person who guarantees in this state the signature of a fiduciary in connection with such a transaction.

Source: SL 1961, ch 22, § 8 (2).
S.D. Codified Laws § 55-19-26 — SD Code / Title 55 / Chapter 19 / Section 55-19-26
Custodian's ability to require court order
Status: in_force

This chapter does not limit a custodian's ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a court order that specifies that an account belongs to the protected person or principal, specifies that there is sufficient consent from the protected person or principal to support the requested disclosure, and contains a finding required by law other than this chapter.

Source: SL 2017, ch 209, § 26.
S.D. Codified Laws § 55-4-52 — SD Code / Title 55 / Chapter 4 / Section 55-4-52
Request for excerpts from trust instrument
Status: in_force

A recipient of a certificate of trust may require the trustee to furnish copies of those excerpts from the original trust instrument and later amendments that designate the trustee and confer on the trustee the power to act in the pending transaction.

Source: SL 2009, ch 252, § 25.
S.D. Codified Laws § 55-1A-21 — SD Code / Title 55 / Chapter 1A / Section 55-1A-21
Corporate powers--Stocks--Reorganizations and mergers--Sales and leases
Status: in_force

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 of such powers a trustee may, where he deems such course to be expedient, deposit stocks, bonds or other securities with any protective or other similar committee, under such terms and conditions respecting the deposit thereof as the trustee may approve.

Source: SL 1979, ch 336, § 21.
S.D. Codified Laws § 55-1A-28 — SD Code / Title 55 / Chapter 1A / Section 55-1A-28
Creation of reserves
Status: in_force

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.
S.D. Codified Laws § 55-13A-405 — SD Code / Title 55 / Chapter 13A / Section 55-13A-405
Rental property
Status: in_force

To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee's contractual obligations have been satisfied with respect to that amount.

Source: SL 2007, ch 282, § 15.
S.D. Codified Laws § 55-17-11 — SD Code / Title 55 / Chapter 17 / Section 55-17-11
Creditor rights--Good faith between spouses
Status: in_force

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 creditor is incurred. The interest of a creditor in an irrevocable South Dakota special spousal property trust may be subject to the rights and liabilities of a creditor with respect to transfers under chapter 55-16 as provided in § 55-17-6 ;

(2) A spouse shall act in good faith with respect to the other spouse in matters involving South Dakota special spousal property. The obligation under and effect of this section may not be varied by a South Dakota special spousal property trust.

Source: SL 2016, ch 231, § 39.
S.D. Codified Laws § 55-19-15 — SD Code / Title 55 / Chapter 19 / Section 55-19-15
Suspension or termination of account of protected person
Status: in_force

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 by a certified copy of the court order giving the conservator authority over the protected person's property.

Source: SL 2017, ch 209, § 15.
S.D. Codified Laws § 55-1-32 — SD Code / Title 55 / Chapter 1 / Section 55-1-32
Alter ego--Pierce the veil, dominion and control claims
Status: in_force

Pierce the veil and dominion and control claims by a party are, in essence, a variation of the alter ego common law doctrine. This section covers all of these types of claims.

In the event that a party brings an action against a trustee, beneficiary, trust advisor, or trust protector under an alter ego claim, none of the following factors, alone or in combination, may be considered as resulting in the alter ego theory being applied to a trustee or the person who is claimed to be the alter ego:

(1) The settlor or a beneficiary serving as a trustee or a co-trustee as described in § 55-1-28 ;

(2) The settlor or a beneficiary holds an unrestricted power to remove or replace a trustee;

(3) The settlor or a beneficiary is a trust administrator, a general partner of a partnership, a manager of a limited liability company, an officer of a corporation, or any other managerial function of any other type of entity, and part or all of the trust property consists of an interest in the entity;

(4) A person related by blood or adoption to the settlor or a beneficiary is appointed as trustee;

(5) The settlor's or a beneficiary's agent, accountant, attorney, financial advisor, or friend is appointed as trustee;

(6) A business associate is appointed as a trustee;

(7) A beneficiary holds any power of appointment over any or all of the trust property;

(8) The settlor holds a power to substitute property of equivalent value;

(9) The trustee may loan trust property to the settlor for less than a full and adequate rate of interest or without adequate security;

(10) The distribution language provides any discretion;

(11) The trust has only one beneficiary eligible for current distributions;

(12) A beneficiary serving as an investment trust advisor, as the role is defined in § 55-1B-1 ;

(13) Isolated occurrences where the settlor has signed checks, made disbursements, or executed other documents related to the trust as a trustee, when in fact the settlor was not a trustee;

(14) Making any requests for distributions on behalf of beneficiaries;

(15) Making any requests to the trustee to hold, purchase, or sell any trust property; or

(16) A beneficiary serving as a trust protector or a trust advisor.

Source: SL 2007, ch 280, § 9; SL 2009, ch 252, § 6; SL 2012, ch 233, § 20; SL 2023, ch 161, § 3.
S.D. Codified Laws § 55-1-53 — SD Code / Title 55 / Chapter 1 / Section 55-1-53
Expansion, restriction, elimination, or variance of provisions of general application
Status: in_force

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 the duties, restrictions, and liabilities imposed by the provisions of §§ 55-4-11 and 55-4-12 .

Source: SL 2015, ch 240, § 14; SL 2018, ch 275, § 21.
S.D. Codified Laws § 55-4-31 — SD Code / Title 55 / Chapter 4 / Section 55-4-31
Trustee not liable if beneficiary consents to conduct or releases trustee from liability or ratifies transaction
Status: in_force

A trustee is not liable to a beneficiary, as defined under this title or Title 29A, for breach of trust from any or all of the duties, restrictions, and liabilities which would otherwise be imposed on the trustee, except as to the duties, restrictions, and liabilities imposed by §§ 55-4-10 to 55-4-12 , inclusive, if the beneficiary consented to the conduct constituting the breach, released the trustee from liability for the breach, or ratified the transaction constituting the breach, unless:

(1) The consent, release, or ratifications of the beneficiary were induced by improper conduct of the trustee; or

(2) At the time of the consent, release, or ratification, the beneficiary did not have knowledge of the beneficiary's rights or of the material facts relating to the breach.

Any such beneficiary may release the trustee from liability to such beneficiary for past violations of any of the provisions of this chapter. No consideration is required for the consent, release, or ratification to be valid.

Source: SL 1943, ch 308, § 18; SDC Supp 1960, § 59.0518; SL 2000, ch 229, § 2; SL 2012, ch 233, § 14; SL 2014, ch 226, § 4.
S.D. Codified Laws § 55-4-6 — SD Code / Title 55 / Chapter 4 / Section 55-4-6
Voting of corporate stock owned by trustee
Status: in_force

A trustee owning corporate stock may vote it by proxy, but shall be liable for any loss resulting to the beneficiaries from a failure to use reasonable care in deciding how to vote the stock and in voting it.

Source: SL 1943, ch 308, § 8; SDC Supp 1960, § 59.0508.
S.D. Codified Laws § 55-5-8 — SD Code / Title 55 / Chapter 5 / Section 55-5-8
Diversification of investments
Status: in_force

The trustee shall diversify the investments of the trust unless, under the circumstances, the trustee reasonably believes it is in the interests of the beneficiaries and furthers the purposes of the trust not to diversify. Regardless of concentration or lack of diversification, the trustee need not diversify if the trust instrument or court order allows or directs retention of assets forming part of the trust corpus and no trustee is liable to a beneficiary to the extent that the trustee acted in reliance on the provisions of the trust instrument or court order. If a trust instrument or court order allows or directs a fiduciary to invest in a specific investment, type of investment, or investment concentration, no trustee is liable to a beneficiary to the extent that the trustee acted in reliance on the provisions of the trust instrument or court order.

Source: SL 1995, ch 271, § 8; SL 2006, ch 243, § 9; SL 2009, ch 252, § 31; SL 2010, ch 232, § 14.
S.D. Codified Laws § 55-13A-404 — SD Code / Title 55 / Chapter 13A / Section 55-13A-404
Principal receipts
Status: in_force

A trustee shall allocate to principal:

(1) To the extent not allocated to income under this chapter, assets received from a transferor during the transferor's lifetime, a decedent's estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary;

(2) Money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to this article;

(3) Amounts recovered from third parties to reimburse the trust because of disbursements described in § 55-13A-502(a)(7) or for other reasons to the extent not based on the loss of income;

(4) Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income;

(5) Net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and

(6) Other receipts as provided in §§ 55-13A-408 to 55-13A-415 , inclusive.

Source: SL 2007, ch 282, § 14.