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CHAPTER 55-3

EXPRESS TRUSTS FOR THIRD-PARTY BENEFICIARIES

55-3-1      Application of chapter.
55-3-2      Creation of trust--Mutual consent of trustor and trustee.
55-3-3      Appointing court or public officer as trustor.
55-3-4      Declaration of trust--Declarations of trustor to trustee before acceptance.
55-3-5      Trustee to follow declaration of trust--Modifications.
55-3-6      Revocation of trust--Consent of beneficiaries--Reservation of power in declaration of trust.
55-3-7      Trustee's power as agent.
55-3-8      Repealed.
55-3-9      Repealed.
55-3-10      Degree of care and diligence used in execution of trusts.
55-3-11      Investment of money by trustee--Interest, simple or compound, on omission to invest trust moneys.
55-3-12      Purchase by trustee of claims against trust property.
55-3-13      Expenses incurred by trustee in performance of trust--Reimbursement.
55-3-14      Compensation of trustee.
55-3-15      Implied trustee--No rights to compensation or repayment of expenses.
55-3-16      Vacation of office of trustee.
55-3-17      Discharge of trustee--Grounds.
55-3-18      Survivorship between cotrustees.
55-3-19      Discharge of trustee before trust executed--Duty to secure appointment of successor.
55-3-20      Removal of trustee by circuit court--Vacant trusteeship filled by court.
55-3-20.1      Grounds for removal of trustee.
55-3-21      Appointment of trustee by circuit court--Grounds.
55-3-22      Repealed.
55-3-23      Termination of trust.
55-3-24      Modification or termination of trust--Consent required--Distribution of property.
55-3-25      Petition to court for affirmation--Non-consenting beneficiaries--Distribution of property.
55-3-26      Petition to modify terms of trust--Circumstances--Distribution of property.
55-3-27      Termination of noncharitable trusts valued under one hundred fifty thousand dollars--Distribution of property.
55-3-28      Terms of trust may be reformed by court.
55-3-29      Trustee may combine or divide trusts--Rights of beneficiaries--Trust purposes--Petition to court.
55-3-29.1      Defense of laches not available.
55-3-29.2      Statute of limitations defense not available.
55-3-30      Provisions not exclusive.
55-3-31 to 55-3-38.      Repealed.
55-3-39      When state law or jurisdiction provision valid, effective, and conclusive.
55-3-40      Validity, construction, and administration of trust with state jurisdiction provision.
55-3-41      Qualified person defined.
55-3-42      State jurisdiction provision defined.
55-3-43      South Dakota investments defined.
55-3-44      Trustor defined.
55-3-45      Beneficiary approval of trustee's accounting--Accounting defined.
55-3-46      Effect of the laws, rules, or orders of foreign country on trust or disposition of property.
55-3-47      Cessation of trustee upon action of foreign court--Successor trustee.
55-3-48      South Dakota law governs administration of trust.


     55-3-1.   Application of chapter. The provisions of this chapter apply to all trusts.

Source: SDC 1939, § 59.0201; SL 1993, ch 213, § 254; SL 1993, ch 355, § 1; SL 1998, ch 282, § 11; SL 2010, ch 232, § 2.


     55-3-2.   Creation of trust--Mutual consent of trustor and trustee. The mutual consent of a trustor and trustee creates a trust of which the beneficiary may take advantage at any time prior to its rescission.

Source: SDC 1939, § 59.0202.


     55-3-3.   Appointing court or public officer as trustor. When a trustee is appointed by a court or public officer as a trustee, the court or officer is the trustor. A court may otherwise establish or create a trust and may act as the trustor of a trust.

Source: SDC 1939, § 59.0202; SL 2016, ch 231, § 19.


     55-3-4.   Declaration of trust--Declarations of trustor to trustee before acceptance. The nature, extent, and object of a trust are expressed in the declaration of trust.
     All declarations of a trustor to his trustees in relation to the trust, before its acceptance by the trustees or any of them are to be deemed part of the declaration of the trust, except that when a declaration of trust is made in writing all previous declarations by the same trustor are merged therein.

Source: SDC 1939, § 59.0203.


     55-3-5.   Trustee to follow declaration of trust--Modifications. A trustee must fulfill the purposes of the trust as declared at its creation, or as subsequently amended, and must follow all the directions of the trustor given at that time, except as modified by the consent of all parties interested, and upon approval by the court. For purposes of modifications by consent of all parties interested and modifications upon approval by the court, the provisions of chapter 55-18 apply to such modifications.

Source: SDC 1939, § 59.0204; SL 1993, ch 355, § 5; SL 2017, ch 208, § 32.


     55-3-6.   Revocation of trust--Consent of beneficiaries--Reservation of power in declaration of trust. If the declaration of trust reserves a power of revocation to the trustor, the trust may be revoked if the power is strictly pursued.

Source: SDC 1939, § 59.0216; SL 1993, ch 355, § 2; SL 1998, ch 282, § 9.


     55-3-7.   Trustee's power as agent. A trustee is a general agent for the trust and the trust property. The trustee's authority is the authority that is conferred upon the trustee by the declaration of trust and by this chapter and none other. The trustee's acts, within the scope of the trustee's authority, bind the trust and the trust property to the same extent as the acts of an agent bind the agent's principal.

Source: SDC 1939, § 59.0209; SL 2016, ch 231, § 20.


     55-3-8.   Repealed by SL 1993, ch 355, § 3


     55-3-9.   Repealed by SL 2007, ch 280, § 25.


     55-3-10.   Degree of care and diligence used in execution of trusts. A trustee, whether he receives any compensation or not, must use at least ordinary care and diligence in the execution of his trust.

Source: SDC 1939, § 59.0205.


     55-3-11.   Investment of money by trustee--Interest, simple or compound, on omission to invest trust moneys. 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.


     55-3-12.   Purchase by trustee of claims against trust property. A trustee cannot enforce any claim against the trust property which he purchases after or in contemplation of his appointment as trustee; but he may be allowed by any competent court to charge to the trust property what he has in good faith paid for the claim, upon discharging the same.

Source: SDC 1939, § 59.0208.


     55-3-13.   Expenses incurred by trustee in performance of trust--Reimbursement. A trustee is entitled to the repayment, out of the trust property, of all expenses actually and properly incurred by the trustee in the performance of his or her trust. The trustee is entitled to the repayment of even unlawful expenditures, if the expenditures were productive of actual benefit to the estate. Expenses in performance of the trust include those expenses actually and properly incurred in the exercise of the trustee's powers as described in the governing instrument, in any applicable court order, or in chapter 55-1A.

Source: SDC 1939, § 59.0212; SL 2014, ch 226, § 18.


     55-3-14.   Compensation of trustee. When a declaration of trust does not specify the rate or amount of the trustee's compensation the trustee is entitled to and shall receive reasonable compensation for the performance of his duties. If such declaration specifies the amount or rate of his compensation, he is entitled to the amount or rate thus specified and no more.

Source: SDC 1939, § 59.0213; SL 1967, ch 337.


     55-3-15.   Implied trustee--No rights to compensation or repayment of expenses. 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.


     55-3-16.   Vacation of office of trustee. The office of a trustee is vacated:
             (1)      By his death; or
             (2)      By his discharge.

Source: SDC 1939, § 59.0217.


     55-3-17.   Discharge of trustee--Grounds. A trustee can be discharged from his trust only as follows:
             (1)      By the extinction of the trust;
             (2)      By the completion of his duties under the trust;
             (3)      By such means as may be prescribed by the declaration of trust;
             (4)      By the consent of the beneficiary, if he has capacity to contract;
             (5)      By the judgment of a competent tribunal in a direct proceeding for that purpose that he is of unsound mind; or
             (6)      By the circuit court.

Source: SDC 1939, § 59.0218.


     55-3-18.   Survivorship between cotrustees. On the death, renunciation, or discharge of one of several cotrustees, the trust survives to the others.

Source: SDC 1939, § 59.0219.


     55-3-19.   Discharge of trustee before trust executed--Duty to secure appointment of successor. If a trustee procures or assents to his discharge from his office before his trust is fully executed, he must use at least ordinary care and diligence to secure the appointment of a trustworthy successor before accepting his own final discharge.

Source: SDC 1939, § 59.0206.


     55-3-20.   Removal of trustee by circuit court--Vacant trusteeship filled by court. 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.


     55-3-20.1.   Grounds for removal of trustee. In addition to other remedies available by law and procedures or powers set out in a trust instrument, the settlor, or the settlor's agent, a trust protector, a cotrustee, or a qualified beneficiary as defined in § 55-2-13, may request the court to remove a trustee, or a trustee may be removed by the court on the court's own initiative.
     In addition to the powers otherwise granted the court, the court may remove a trustee if:
             (1)      The trustee commits a serious breach of trust;
             (2)      Lack of cooperation among cotrustees substantially impairs the administration of the trust;
             (3)      Because of unfitness, unwillingness, persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries;
             (4)      There is a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available; or
             (5)      If the trustee merges with another institution or the location or place of administration of the trust changes, and the court finds that removal of the trustee best serves the interests of all of the beneficiaries, and a suitable cotrustee or successor trustee is available.
     Pending a final decision on a request to remove a trustee, the court may order such appropriate relief as may be necessary to protect the trust property or the interests of the beneficiaries.

Source: SL 2009, ch 252, § 23; SL 2015, ch 240, § 17.


     55-3-21.   Appointment of trustee by circuit court--Grounds. If a trust exists without any appointed trustees, or where all the trustees renounce, die, or are discharged, the circuit court for the county where the trust property or some portion thereof is situated must appoint another trustee and direct the execution of the trust. The court may in its discretion appoint the original number or any less number of trustees.

Source: SDC 1939, § 59.0220.


     55-3-22.   Repealed by SL 1998, ch 282, § 10


     55-3-23.   Termination of trust. In addition to the methods specified in §§ 55-3-24 to 55-3-27, inclusive, a trust terminates if:
             (1)      The term of the trust expires;
             (2)      The trust purpose is fulfilled;
             (3)      The trust purpose becomes unlawful or impossible to fulfill; or
             (4)      The trust is revoked.

Source: SL 1998, ch 282, § 1; SL 2016, ch 231, § 21.


     55-3-24.   Modification or termination of trust--Consent required--Distribution of property. An irrevocable trust may be modified or terminated upon the consent of all of the beneficiaries if continuance of the trust on its existing terms is not necessary to carry out a material purpose. Whether or not continuance of the trust on its existing terms is necessary to carry out a material purpose, an irrevocable trust may be modified or terminated upon the consent of the trustor and all of the beneficiaries. Upon termination of a trust under this section, the trustee shall distribute the trust property in accordance with the trustor's probable intention or in any other manner as agreed by all the beneficiaries. No person may be required to seek court affirmation of the trust's modification or termination made pursuant to this section. The provisions of chapter 55-18 apply to this section.

Source: SL 1998, ch 282, § 2; SL 2004, ch 312, § 9; SL 2017, ch 208, § 33.


     55-3-25.   Petition to court for affirmation--Non-consenting beneficiaries--Distribution of property. 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.


     55-3-26.   Petition to modify terms of trust--Circumstances--Distribution of property. On petition by a trustee or beneficiary, the court may modify the administrative or dispositive terms of the trust or terminate the trust if, because of circumstances not anticipated by the trustor, modification or termination of the trust would substantially further the trustor's purposes in creating the trust. Upon termination of a trust under this section, the trust property shall be distributed in accordance with the trustor's probable intention.

Source: SL 1998, ch 282, § 4.


     55-3-27.   Termination of noncharitable trusts valued under one hundred fifty thousand dollars--Distribution of property. Except as otherwise provided by the terms of the trust, if the value of the trust property of a noncharitable trust is less than one hundred fifty thousand dollars, the trustee may terminate the trust. On petition by a trustee or beneficiary, the court may modify or terminate a noncharitable trust or appoint a new trustee if it determines that the value of the trust property is insufficient to justify the cost of administration involved. Upon termination of a trust pursuant to this section, the trustee shall distribute the trust property in accordance with the trustor's probable intention. The existence of spendthrift or similar protective provisions in a trust does not make this section inapplicable. The court, when considering the termination of a trust containing spendthrift or similar protective provisions, shall consider the feasibility of appointing a new trustee to continue the trust. This section does not apply to a purpose trust under subdivision 55-1-21(1).

Source: SL 1998, ch 282, § 5; SL 2004, ch 312, § 12; SL 2015, ch 240, § 18; SL 2018, ch 275, § 26.


     55-3-28.   Terms of trust may be reformed by court. 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 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.


     55-3-29.   Trustee may combine or divide trusts--Rights of beneficiaries--Trust purposes--Petition to court. Without approval of court and except as otherwise provided by the terms of the trust, a trustee may combine two or more trusts into a single trust or divide a trust into two or more separate trusts, if the combination or division does not impair the rights of any of the beneficiaries or substantially affect the accomplishment of the trust purposes. On petition by a trustee or beneficiary, the court may affirm or prevent a proposed combination or division; and, if the terms of the trust instruments creating the trusts are inconsistent, the court shall resolve such inconsistencies in its order by establishing the terms of the trust that will survive the combination or division.

Source: SL 1998, ch 282, § 7; SL 2004, ch 312, § 11.


     55-3-29.1.   Defense of laches not available. No beneficiary of a trust may assert the defense of laches in any proceeding to modify, reform, or terminate a trust pursuant to §§ 55-3-23 to 55-3-29, inclusive.

Source: SL 2009, ch 252, § 22.


     55-3-29.2.   Statute of limitations defense not available. No beneficiary of a trust may assert a statute of limitations defense in any proceeding to modify, reform, or terminate a trust pursuant to §§ 55-3-23 to 55-3-29, inclusive.

Source: SL 2011, ch 212, § 12.


     55-3-30.   Provisions not exclusive. The provisions of §§ 55-3-23 to 55-3-29, inclusive, shall not be construed as exclusive methods of modifying or terminating irrevocable trusts.

Source: SL 1998, ch 282, § 8.


     55-3-31 to 55-3-38.   Repealed by SL 2017, ch 208, § 36.


     55-3-39.   When state law or jurisdiction provision valid, effective, and conclusive. 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.


     55-3-40.   Validity, construction, and administration of trust with state jurisdiction provision. The validity, construction, and administration of a trust with a state jurisdiction provision are determined by the laws of this state, including the:
             (1)      Capacity of the trustor;
             (2)      Powers, obligations, liabilities, and rights of the trustees and the appointment and removal of the trustees; and
             (3)      Existence and extent of powers, conferred or retained, including a trustee's discretionary powers, and the validity of the exercise of a power.

Source: SL 1998, ch 282, § 21.


     55-3-41.   Qualified person defined. 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.


     55-3-42.   State jurisdiction provision defined. 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.


     55-3-43.   South Dakota investments defined. For the purposes of § 55-3-39, the term, South Dakota investments, means real property located in South Dakota, any equity or debt securities of a corporation, partnership, or limited liability company organized under the laws of South Dakota or having its headquarters in South Dakota, debt securities of the State of South Dakota or any of its subdivisions, or any of its instrumentalities.

Source: SL 1998, ch 282, § 24.


     55-3-44.   Trustor defined. For the purposes of § 55-3-40, the term, trustor, means a person who transfers property in trust, and includes a person who furnishes the property transferred to a trust even if the trust is created by another person.

Source: SL 1998, ch 282, § 25.


     55-3-45.   Beneficiary approval of trustee's accounting--Accounting defined. 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 mailed, postage prepaid, to the last known address of such distribution beneficiary, personally, or electronically in accordance with § 15-6-5(d), 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.
     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.


     55-3-46.   Effect of the laws, rules, or orders of foreign country on trust or disposition of property. 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.


     55-3-47.   Cessation of trustee upon action of foreign court--Successor trustee. If, in any action brought against a trustee of a trust, a foreign court takes any action whereby such court declines to apply the law of this state in determining the validity, construction, or administration of such trust, or the effect of a spendthrift provision thereof, the trustee shall immediately upon the foreign court's action and without the further order of any court of this state, cease in all respects to be trustee of the trust and a successor trustee shall thereupon succeed as trustee in accordance with the terms of the trust instrument or, if the trust instrument does not provide for a successor trustee and the trust would otherwise be without a trustee, the court, upon the application of any beneficiary of the trust, shall appoint a successor trustee upon such terms and conditions as it determines to be consistent with the purposes of the trust and this section. Upon the trustee's ceasing to be trustee, the trustee has no power or authority other than to convey the trust property to the successor trustee named in the trust instrument in accordance with this section.

Source: SL 2006, ch 243, § 10.


     55-3-48.   South Dakota law governs administration of trust. Unless the governing instrument or a court order expressly prohibits the change of the law of another jurisdiction to govern the administration of the trust, the laws of South Dakota shall govern the administration of a trust while the trust is administered in South Dakota.

Source: SL 2012, ch 233, § 25; SL 2016, ch 231, § 23.


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