29A-6-101      Definition of terms.
29A-6-102      Application to controversies between parties and between parties and P.O.D.
29A-6-103      Ownership of joint account, P.O.D.
29A-6-104      Rights of survivorship upon death of party to joint account, P.O.D.
29A-6-105      Rights of survivorship determined by form of account at death of party--Alteration of form.
29A-6-106      Effectiveness of transfers--Not considered testamentary.
29A-6-107      Payment to surviving party from multiple-party account--Liability for debts and expenses of administration--Procedure--Liability of financial institution.
29A-6-108      Financial institution as party to multiple-party accounts.
29A-6-109      Payments from joint account to party, personal representative or heirs.
29A-6-110      Payment from trust account to trustee, personal representative, heirs or beneficiary.
29A-6-111      Financial institution discharged from claims--Exception where notice given.
29A-6-112      Right of financial institution to setoff--Amount.
29A-6-113      Provisions deemed nontestamentary--Rights of creditors not limited.
29A-6-114      Payment of P.O.D.

29A-6-101. Definition of terms.

Terms used in §§ 29A-6-101 to 29A-6-114, inclusive, mean:

(1)    "Account," any contract of deposit of funds between a depositor and a financial institution, and includes any checking account, savings account, certificate of deposit, share account, and other like arrangement;

(2)    "Beneficiary," any person named in a trust account as one for whom a party to the account is named as trustee;

(3)    "Financial institution," any organization authorized to do business under state or federal laws relating to financial institutions, including banks and trust companies, savings banks, building and loan associations, savings and loan companies or associations, credit unions, and any organization described in § 501(c)(3) of the Internal Revenue Code;

(4)    "Joint account," any account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorship;

(5)    "Multiple-party account," any joint account, a P.O.D. account or any trust account. The term does not include accounts established for deposit of funds of a partnership, limited liability company, joint venture, or other association for business purposes, or accounts controlled by one or more persons as the duly authorized agent or trustee for a corporation, unincorporated association, charitable or civic organization, or a regular fiduciary or trust account if the relationship is established other than by deposit agreement;

(6)    "Net contribution of a party to a joint account," is, as of any given time, the sum of all deposits thereto made by or for the party, less all withdrawals made by or for the party which have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance. The term includes any proceeds of deposit life insurance added to the account by reason of the death of the party whose net contribution is in question;

(7)    "Party," any person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account. A P.O.D. payee or beneficiary of a trust account is a party only after the account becomes payable to the party by reason of the party's surviving the original payee or trustee. Unless the context otherwise requires, it includes a guardian, conservator, personal representative, or assignee, including an attaching creditor, of a party. It also includes any person identified as a trustee of an account for another whether or not a beneficiary is named, but it does not include any named beneficiary unless he has a present right of withdrawal. It also includes any minor even though the account may have been started by an adult, and even though the minor's signature may have been executed or subscribed by an adult, and not the named minor;

(8)    "Payment," payment of sums on deposit includes withdrawal, payment on check or other directive of a party, and any pledge of sums on deposit by a party and any setoff, or reduction or other disposition of all or part of an account pursuant to a pledge;

(9)    "P.O.D. account," an account payable on request to one person during that person's lifetime and on that person's death to one or more P.O.D. payees, or to one or more persons during their lifetimes and on the death of all of them to one or more P.O.D. payees;

(10)    "P.O.D. payee," a person designated on a P.O.D. account as one to whom the account is payable on request after the death of one or more persons;

(11)    "Proof of death," a death certificate or record or report which is prima facie proof of death under § 29A-1-107;

(12)    "Request," a proper request for withdrawal, or a check or order for payment, which complies with all conditions of the account, including special requirements concerning necessary signatures and regulations of the financial institution; but if the financial institution conditions withdrawal or payment on advance notice, for purposes of this part the request for withdrawal or payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for withdrawal;

(13)    "Sums on deposit," any balance payable on a multiple-party account including interest, dividends, and in addition any deposit life insurance proceeds added to the account by reason of the death of a party;

(14)    "Trust account," any account in the name of one or more parties as trustee for one or more beneficiaries where the relationship is established by the form of the account and the deposit agreement with the financial institution and there is no subject of the trust other than the sums on deposit in the account; it is not essential that payment to the beneficiary be mentioned in the deposit agreement. A trust account does not include a regular trust account under a testamentary trust or a trust agreement which has significance apart from the account, or a fiduciary account arising from a fiduciary relation such as attorney-client;

(15)    "Withdrawal," payment to a third person pursuant to check or other directive of a party.

Source: SL 1987, ch 208, § 1; SL 1991, ch 215, § 1; SL 1991, ch 230, § 1A; SL 1994, ch 351, § 49; SDCL 30-23-43; SL 1995, ch 167, §§ 170, 172; SL 1997, ch 174, § 1.

29A-6-102. Application to controversies between parties and between parties and P.O.D.

The provisions of §§ 29A-6-103 to 29A-6-105, inclusive, concerning beneficial ownership as between parties, or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts. The provisions of §§ 29A-6-108 to 29A-6-112, inclusive, govern the liability of financial institutions which make payments pursuant thereto, and their setoff rights.

Source: SL 1987, ch 208, § 2; SL 1991, ch 230, § 1B; SDCL 30-23-44; SL 1995, ch 167, § 172.

29A-6-103. Ownership of joint account, P.O.D.

(1) A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.

(2) A P.O.D. account belongs to the original payee during his lifetime and not to the P.O.D. payee or payees; if two or more parties are named as original payees, during their lifetimes rights as between them are governed by subsection (1) of this section.

(3) Unless a contrary intent is manifested by the terms of the account or the deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during his lifetime, and if two or more parties are named as trustee on the account, during their lifetimes beneficial rights as between them are governed by this section. If there is an irrevocable trust, the account belongs beneficially to the beneficiary.

Source: SL 1987, ch 208, § 3; SL 1991, ch 230, § 1C; SDCL 30-23-45; SL 1995, ch 167, § 172.

29A-6-104. Rights of survivorship upon death of party to joint account, P.O.D.

(1) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created. If there are two or more surviving parties, their respective ownerships during lifetime shall be in proportion to their previous ownership interests under § 29A-6-103 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death, and the right of survivorship continues between the surviving parties.

(2) If the account is a P.O.D. account:

(a)    On death of one or two or more original payees the rights to any sums remaining on deposit are governed by subsection (1);

(b)    On death of the sole original payee or of the survivor of two or more original payees, any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the original payee; if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.

(3) If the account is a trust account, on the death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subsection (1). However, on the death of the sole trustee or the survivor of two or more trustees, any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear evidence of a contrary intent; if two or more beneficiaries survive, there is no right of survivorship in the event of the death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.

(4) In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of his estate.

(5) A right of survivorship arising from the express terms of the account or under this section or a beneficiary designation in a trust account or a P.O.D. payee designation cannot be changed by will, unless the will expressly provides that the terms of the account should be changed or modified.

Source: SL 1987, ch 208, § 4; SL 1990, ch 221; SL 1991, ch 230, § 1D; SDCL 30-23-46; SL 1995, ch 167, § 172.

29A-6-105. Rights of survivorship determined by form of account at death of party--Alteration of form.

The provisions of § 29A-6-104 as to rights of survivorship are determined by the form of the account at the death of a party. This form may be altered by written order given by a party to the financial institution to change the form of the account or to stop or vary payment under the terms of the account. The order or request shall be signed by a party, received by the financial institution during the party's lifetime, and not countermanded by other written order of the same party during his lifetime.

Source: SL 1987, ch 208, § 5; SDCL 30-23-47; SL 1995, ch 167, § 172.

29A-6-106. Effectiveness of transfers--Not considered testamentary.

Any transfers resulting from the application of § 29A-6-104 are effective by reason of the account contracts involved and §§ 29A-6-101 to 29A-6-113, inclusive, and are not to be considered as testamentary except to the extent directed by § 29A-6-107.

Source: SL 1987, ch 208, § 6; SDCL 30-23-48; SL 1995, ch 167, § 172.

29A-6-107. Payment to surviving party from multiple-party account--Liability for debts and expenses of administration--Procedure--Liability of financial institution.

No multiple-party account is effective against an estate of a deceased party to transfer to a survivor sums needed to pay debts, taxes, and expenses of administration, including statutory allowances to the surviving spouse, minor children and dependent children, if other assets of the estate are insufficient. A surviving party, P.O.D. payee or beneficiary who receives payment from a multiple-party account after the death of a deceased party shall be liable to account to his personal representative for amounts the decedent owned beneficially immediately before his death to the extent necessary to discharge the claims and charges mentioned above remaining unpaid after application of the decedent's estate. No proceeding to assert this liability may be commenced unless the personal representative has received a written demand by a surviving spouse, a creditor or one acting for a minor or dependent child of the decedent, and no proceeding shall be commenced later than two years following the death of the decedent. Sums recovered by the personal representative shall be administered as part of the decedent's estate. This section does not affect the right of a financial institution to make payment on multiple-party accounts according to the terms thereof or make it liable to the estate of a deceased party unless before payment the institution has been served with process in a proceeding by the personal representative.

Source: SL 1987, ch 208, § 7; SL 1991, ch 230, § 1E; SDCL 30-23-49; SL 1995, ch 167, § 172.

29A-6-108. Financial institution as party to multiple-party accounts.

Any financial institution may enter into multiple-party accounts to the same extent that they may enter into single-party accounts. Any multiple-party account may be paid, on request, to any one or more of the parties. No financial institution may be required to inquire as to the source of funds received for deposit to a multiple-party account or to inquire as to the proposed application of any sum withdrawn from an account for purposes of establishing net contributions.

Source: SL 1987, ch 208, § 8; SDCL 30-23-50; SL 1995, ch 167, § 172.

29A-6-109. Payments from joint account to party, personal representative or heirs.

Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded. However, payment may not be made to the personal representative or heirs of a deceased party unless proofs of death are presented to the financial institution showing that the decedent was the last surviving party or unless there is no right of survivorship under § 29A-6-104.

Source: SL 1987, ch 208, § 9; SL 1992, ch 88, § 10; SL 1993, ch 94, § 4; SDCL 30-23-51; SL 1995, ch 167, § 172.

29A-6-110. Payment from trust account to trustee, personal representative, heirs or beneficiary.

Any trust account may be paid, on request, to any trustee. Unless the financial institution has received written notice that the beneficiary has a vested interest not dependent upon his surviving the trustee, payment may be made to the personal representative or heirs of a deceased trustee if proof of death is presented to the financial institution showing that his decedent was the survivor of all other persons named on the account either as trustee or beneficiary. Payment may be made, on request, to the beneficiary upon presentation to the financial institution of proof of death showing that the beneficiary or beneficiaries survived all persons named as trustees.

Source: SL 1987, ch 208, § 10; SL 1992, ch 88, § 11; SL 1993, ch 94, § 5; SDCL 30-23-52; SL 1995, ch 167, § 172.

29A-6-111. Financial institution discharged from claims--Exception where notice given.

Payment made pursuant to § 29A-6-108, 29A-6-109, 29A-6-110, or 29A-6-114, discharges the financial institution from all claims for amounts so paid whether or not the payment is consistent with the beneficial ownership of the account as between parties, or beneficiaries, or their successors. The protection here given does not extend to payments made after a financial institution has received written notice from any party able to request present payment to the effect that withdrawals in accordance with the terms of the account should not be permitted. Unless the notice is withdrawn by the person giving it, the successor of any deceased party shall concur in any demand for withdrawal if the financial institution is to be protected under this section. No other notice or any other information shown to have been available to a financial institution effects its right to the protection provided here. The protection here provided has no bearing on the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of funds in, or withdrawn from, multiple-party accounts.

Source: SL 1987, ch 208, § 11; SL 1991, ch 230, § 1F; SDCL 30-23-53; SL 1995, ch 167, § 172.

29A-6-112. Right of financial institution to setoff--Amount.

Without qualifying any other statutory right to setoff or lien and subject to any contractual provision, if a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to setoff against the account in which the party has or had immediately before his death a present right of withdrawal. The amount of the account subject to setoff is that proportion to which the debtor is, or was immediately before his death, beneficially entitled, and in the absence of proof of net contributions, to an equal share with all parties having present rights of withdrawal.

Source: SL 1987, ch 208, § 12; SDCL 30-23-54; SL 1995, ch 167, § 172.

29A-6-113. Provisions deemed nontestamentary--Rights of creditors not limited.

(a) A provision for a nonprobate transfer on death in 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 or gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. This subsection includes a written provision that:

(1)    Money or other benefits due to, controlled by, or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later;

(2)    Money due or to become due under the instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand; or

(3)    Any property controlled by or owned by the decedent before death which is the subject of the instrument passes to a person the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.

(b) This section does not limit rights of creditors under other laws of this state.

Source: SL 1987, ch 208, § 13; SDCL 30-23-55; SL 1995, ch 167, §§ 171, 172.

29A-6-114. Payment of P.O.D.

Any P.O.D. account may be paid, on request, to any original party to the account. Payment may be made, on request, to the P.O.D. payee or to the personal representative or heirs of a deceased P.O.D. payee upon presentation to the financial institution of proof of death showing that the P.O.D. payee survived all persons named as original payees. Payment may be made to the personal representative or heirs of a deceased original payee if proof of death is presented to the financial institution showing that his decedent was the survivor of all other persons named on the account either as an original payee or other persons named on the account either as an original payee or as P.O.D. payee.

Source: SL 1991, ch 230, § 2; SL 1992, ch 88, § 12; SL 1993, ch 94, § 6; SDCL 30-23-56; SL 1995, ch 167, § 172.

29A-6-301. Definitions.

In this part:

(1)    "Beneficiary form," means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner;

(2)    "Register," including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities;

(3)    "Registering entity," means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities;

(4)    "Security," means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security, and a security account;

(5)    "Security account," means (i) a reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death; (ii) an investment management or custody account with a trust company or a trust division of a bank with trust powers, including the securities in the account, a cash balance in the account, and cash, cash equivalents, interest, earnings, or dividends earned or declared on the security in the account, whether or not credited to the account before the owner's death; or (iii) a cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.

Source: SL 1995, ch 168, § 6-301; SL 2004, ch 189, § 1.

29A-6-302. Registration in beneficiary form--Sale or joint tenancy ownership.

Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.

Source: SL 1995, ch 168, § 6-302.

29A-6-303. Registration in beneficiary form--Applicable law.

A security may be registered in beneficiary form if the form is authorized by this or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by this or a similar statute of the law of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which this or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.

Source: SL 1995, ch 168, § 6-303.

29A-6-304. Origination of registration in beneficiary form.

A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.

Source: SL 1995, ch 168, § 6-304.

29A-6-305. Form of registration in beneficiary form.

Registration in beneficiary form may be shown by the words "transfer on death" or the abbreviation "TOD," or by the words "pay on death" or the abbreviation "POD," after the name of the registered owner and before the name of a beneficiary.

Source: SL 1995, ch 168, § 6-305.

29A-6-306. Effect of registration in beneficiary form.

The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary.

Source: SL 1995, ch 168, § 6-306.

29A-6-307. Ownership on death of owner.

On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.

Source: SL 1995, ch 168, § 6-307.

29A-6-308. Protection of registering entity.

(a) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by this part.

(b) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this part.

(c) A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with § 29A-6-307 and does so in good faith reliance (i) on the registration, (ii) on this part, and (iii) on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity. The protections of this part do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this part.

(d) The protection provided by this part to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.

Source: SL 1995, ch 168, § 6-308.

29A-6-309. Nontestamentary transfer on death.

(a) A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this part and is not testamentary.

(b) This part does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.

Source: SL 1995, ch 168, § 6-309.

29A-6-310. Terms, conditions, and forms for registration.

(a) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests (i) for registrations in beneficiary form, and (ii) for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for "lineal descendants per stirpes." This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity's terms and conditions.

(b) The following are illustrations of registrations in beneficiary form which a registering entity may authorize:

(1)    Sole owner-sole beneficiary: John S Brown TOD (or POD) John S Brown Jr.

(2)    Multiple owners-sole beneficiary: John S Brown Mary B Brown JT TEN TOD John S Brown Jr.

(3)    Multiple owners-primary and secondary (substituted) beneficiaries: John S Brown Mary B Brown JT TEN TOD John S Brown Jr SUB BENE Peter Q Brown or John S Brown Mary B Brown JT TEN TOD John S Brown Jr LDPS.

Source: SL 1995, ch 168, § 6-310.

29A-6-311. Application of part.

This part applies to registrations of securities in beneficiary form made before or after July 1, 1996, by decedents dying on or after July 1, 1996.

Source: SL 1995, ch 168, § 6-311.

29A-6-401. Short title.

This part may be cited as the South Dakota Real Property Transfer on Death Act.

Source: SL 2014, ch 133, § 1.

29A-6-402. Definitions.

Terms used in this part mean:

(1)    "Beneficiary," a person who receives property under a transfer on death deed;

(2)    "Designated beneficiary," a person designated to receive property in a transfer on death deed;

(3)    "Joint owner," any individual who owns property concurrently with one or more other individuals with a right of survivorship. The term includes a joint tenant with a right of survivorship. The term does not include a tenant in common;

(4)    "Person," 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;

(5)    "Property," an interest in real property located in this state which is transferable on the death of the owner;

(6)    "Transfer on a death deed," a document authorized under this part and is considered a governing instrument as defined by subdivision 29A-1-201(19);

(7)    "Transferor," any individual who makes a transfer on a death deed.

Source: SL 2014, ch 133, § 2.

29A-6-403. Transfer on death deed authorized.

Property may be transferred to one or more beneficiaries by a transfer on a death deed and is effective at the transferor's death.

Source: SL 2014, ch 133, § 3.

29A-6-404. Nonexclusivity.

This part does not affect any method of transferring property otherwise permitted under the law of this state.

Source: SL 2014, ch 133, § 4.

29A-6-405. Transfer on death deed revocable.

A transfer on a death deed is revocable even if the deed or another instrument contains a contrary provision.

Source: SL 2014, ch 133, § 5.

29A-6-406. Transfer on death deed nontestamentary.

A transfer on a death deed is nontestamentary.

Source: SL 2014, ch 133, § 6.

29A-6-407. Capacity of transferor.

The capacity required to make or revoke a transfer on a death deed is the same as the capacity required to make a will.

Source: SL 2014, ch 133, § 7.

29A-6-408. Requirements.

A transfer on death deed must:

(1)    Except as otherwise provided in subdivision (2), contain the essential elements and formalities of a properly recordable inter vivos deed as required by the standards of title;

(2)    State that the transfer to the designated beneficiary is to occur at the transferor's death; and

(3)    Be recorded before the transferor's death in the public records in the office of the register of deeds in the county where the property is located.

Source: SL 2014, ch 133, § 8.

29A-6-409. Notice, delivery, acceptance, consideration not required.

A transfer on death deed is effective without:

(1)    Notice or delivery to or acceptance by the designated beneficiary during the transferor's life; or

(2)    Consideration.

Source: SL 2014, ch 133, § 9.

29A-6-410. Revocation by instrument authorized.

Subject to § 29A-6-411, an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument:

(1)    Is:

(a)    A transfer on death deed that revokes the deed or part of the deed expressly or by inconsistency;

(b)    An instrument of revocation that expressly revokes the deed or part of the deed; or

(c)    An inter vivos deed that expressly revokes the transfer on death deed or part of the deed; and

(2)    Is acknowledged by the transferor after the acknowledgment of the deed being revoked and recorded before the transferor's death in the public records in the office of the register of deeds in the county where the deed is recorded.

Source: SL 2014, ch 133, § 10.

29A-6-411. Revocation by more than one transferor.

If a transfer on death deed is made by more than one transferor:

(1)    Revocation by one transferor does not affect the deed as to the interest of another transferor; and

(2)    A deed of joint owners is revoked only if it is revoked by all of the living joint owners.

Source: SL 2014, ch 133, § 11.

29A-6-412. Revocation by act not permitted.

After a transfer on death deed is recorded, it may not be revoked by a revocatory act on the deed. Such revocatory act includes burning, tearing, canceling, obliterating, or destroying the deed, or any part of it.

Source: SL 2014, ch 133, § 12.

29A-6-413. Effect of inter vivos transfer not limited.

Nothing in §§ 29A-6-410 to 29A-6-412, inclusive, limits the effect of an inter vivos transfer of the property.

Source: SL 2014, ch 133, § 13.

29A-6-414. Effect of transfer on death deed during transferor's life.

During a transferor's life, a transfer on death deed does not:

(1)    Affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property;

(2)    Affect an interest or right of a designated beneficiary, even if the designated beneficiary has actual or constructive notice of the deed;

(3)    Affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even if the creditor has actual or constructive notice of the deed;

(4)    Affect the transferor's or designated beneficiary's eligibility for any form of public assistance;

(5)    Create a legal or equitable interest in favor of the designated beneficiary; or

(6)    Subject the property to claims or process of a creditor of the designated beneficiary.

Source: SL 2014, ch 133, § 14.

29A-6-415. Effect of transfer on death deed at transferor's death.

Except as otherwise provided in the transfer on death deed, in this section, §§ 29A-2-603, 29A-2-701, 29A-2-802, or 29A-2-803, revocation by divorce or homicide, survival and simultaneous death, and elective share, on the death of the transferor, the following rules apply to property that is the subject of a transfer on death deed and owned by the transferor at death:

(1)    Subject to subdivision (2), the interest in the property is transferred to the designated beneficiary, or when necessary, to the contingent beneficiary in accordance with the deed.

(2)    The interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. The interest of any designated or contingent beneficiary who fails to survive the transferor by one hundred twenty hours lapses unless survival is specifically waived or modified as provided by § 29A-2-702.

(3)    Subject to subdivision (4), concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship.

(4)    If the transferor identifies two or more designated beneficiaries to receive concurrent interests in the property, the share of one which lapses or fails for any reason is transferred to the other, or to the others in proportion to the interest of each in the remaining part of the property held concurrently.

Source: SL 2014, ch 133, § 15.

29A-6-416. Beneficiary takes property subject to all interests present at transferor's death.

Subject to chapter 43-28, a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the transferor's death. For purposes of this section and chapter 43-28, the recording of the transfer on death deed is deemed to have occurred at the transferor's death.

Source: SL 2014, ch 133, § 16.

29A-6-417. Effect of transfer on death deed when transferor is joint owner.

If a transferor is a joint owner and is:

(1)    Survived by one or more other joint owners, then the property that is the subject of a deed belongs to the surviving joint owner or owners with right of survivorship; or

(2)    The last surviving joint owner, then the transfer on death deed is effective.

Source: SL 2014, ch 133, § 17.

29A-6-418. Transfer on death deed transfers property without covenant or warranty of title.

A transfer on death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.

Source: SL 2014, ch 133, § 18.

29A-6-419. Disclaimer.

A beneficiary may disclaim all or part of the beneficiary's interest as provided by § 29A-2-801. The disclaimer of an interest in property must be recorded in the office of the register of deeds in the county where the property that is the subject of the disclaimer is located.

Source: SL 2014, ch 133, § 19.

29A-6-420. Liability for debts and obligations of deceased transferor.

Upon the death of the transferor, the beneficiary is liable for the debts and obligations of the deceased transferor under the conditions set forth in §§ 29A-6-421 to 29A-6-424, inclusive.

Source: SL 2014, ch 133, § 20.

29A-6-421. Action by creditor or personal representative against beneficiary--Time limitations.

Unless a settlement is made with the beneficiary, a creditor or personal representative of the deceased transferor may institute an action in any court of competent jurisdiction, within six months after the death of the transferor, against the beneficiary setting forth such claim, unless the action is for recovery of medical assistance initiated by the Department of Social Services pursuant to Title 28, in which case the action must be commenced within the shorter of two years after the death of the transferor, or within six months of written notice to the Department of Social Services with information of the transferor's death, social security number, and if available upon reasonable investigation, the transferor's deceased spouse's name and social security number.

Source: SL 2014, ch 133, § 21.

29A-6-422. Proof of insufficient other property to satisfy debts and obligations--Presumption.

In any action instituted by a creditor or personal representative of a deceased transferor, as specified in § 29A-6-421, the person instituting the action shall allege and prove that there is not sufficient other property standing in the name of the deceased transferor at the time of transferor's death which is subject to and sufficient to pay said debts and obligations; provided that, if no petition is filed in court to probate the deceased transferor's estate within thirty days from the date of transferor's death, there is a presumption of evidence that the property standing in the name of the decedent at the time of transferor's death is insufficient to pay transferor's debts and obligations.

Source: SL 2014, ch 133, § 22.

29A-6-423. Limitation of beneficiary liability.

The beneficiary is liable to the creditors or personal representatives of the deceased transferor for the lawful debts and obligations of the deceased transferor only in an amount equal to the value of the property contributed by the deceased transferor determined as of the time of transferor's death, but subject to all homestead and legal exemptions in the deceased transferor's property.

Source: SL 2014, ch 133, § 23.

29A-6-424. More than one transfer on death deed at time of death--Beneficiaries jointly and severally liable to creditors.

In any case where a deceased transferor has more than one transfer on death deed at the time of transferor's death, all of the beneficiaries therein are jointly and severally liable to the creditors or personal representative of the deceased transferor as herein provided and any beneficiary who is made a defendant in any action has the right to require any other such beneficiary within the jurisdiction of the court to be joined as a party defendant in the action and has the right of pro rata contribution against other beneficiaries, to the extent of their respective liability hereunder.

Source: SL 2014, ch 133, § 24.

29A-6-425. Purchaser for value or lender acquiring security interest in property takes property free of claims.

A purchaser for value of property or a lender who acquires a security interest in the property from a beneficiary of a transfer on death deed after the death of the owner, in good faith, takes the property free of any claims of or liability to the owner's estate, creditors of the owner's estate, persons claiming rights as beneficiaries under the deed or heirs of the owner's estate, in absence of actual knowledge that the transfer was improper or that the information in an affidavit of confirmation, if any, provided pursuant to § 29A-6-432, is not true; and, a purchaser or lender for value has no duty to verify sworn information relating to the deed.

Source: SL 2014, ch 133, § 25.

29A-6-426. Agent may not modify beneficiary designation unless authorized.

An attorney in fact, custodian, conservator, or other agent may not make, revoke, or change a beneficiary designation unless the document establishing the agent's right to act, or a court order, expressly authorizes such action and such action complies with the terms of the governing instrument, the rulings of the court, and applicable law.

This section does not prohibit the authorized withdrawal, sale, pledge, or other present transfer of the property by an attorney in fact, custodian, conservator, or other agent notwithstanding the fact that the effect of the transaction may be to extinguish a designated beneficiary's right to receive a transfer of the property at the death of the owner.

Source: SL 2014, ch 133, § 26.

29A-6-427. Recording of transfer of deceased owner's property--Affidavit of confirmation.

The transfer of a deceased owner's property or interest in property must be recorded with the register of deeds in the county where the property is located by filing an affidavit of confirmation executed by any designated beneficiary to whom the transfer is made. The affidavit of confirmation must be verified before a person authorized to administer oaths and must be accompanied by a certified copy of the death certificate for the deceased owner and for each designated beneficiary identified in subdivision (4). The affidavit of confirmation shall contain all of the following information:

(1)    The name and address of each transfer on death beneficiary who survives the deceased owner or that is in existence on the date of death of the deceased owner. If the named beneficiary is deceased, the name and address of the contingent beneficiary or person who takes under the anti-lapse statutes shall be included. If a named beneficiary is designated as a transfer on death beneficiary solely in that person's capacity as a trustee of a trust and that trustee subsequently has been replaced by a successor trustee, the affidavit of confirmation shall include the name and address of the successor trustee and must be accompanied by proof of acceptance by the successor trustee;

(2)    The date of death of the deceased owner;

(3)    The legal description of the subject property or interest in property;

(4)    The name of each designated beneficiary who has not survived the deceased owner or who is not in existence on the date of death of the deceased owner; and

(5)    A statement that notice of the death of the decedent was given to the South Dakota Department of Social Services to satisfy any public welfare and assistance liens under Title 28.

Source: SL 2014, ch 133, § 27.

29A-6-428. Index reference in the record of deeds.

The register of deeds shall make an index reference in the record of deeds to any affidavit of confirmation filed with the register of deeds under the provisions of this part.

Source: SL 2014, ch 133, § 28.

29A-6-429. Falsification of affidavit of confirmation.

Any person who knowingly makes any false statement in an affidavit of confirmation is guilty of falsification under § 22-11-23.

Source: SL 2014, ch 133, § 29.

29A-6-430. Optional form of transfer on death deed.

The following form may be used to create a transfer on death deed. The provisions of this part govern the effect of this or any other instrument used to create a transfer on death deed.

    REVOCABLE TRANSFER ON DEATH DEED

Notice to Owner: This deed will transfer ownership of the property described below when you die. You should carefully read all of the information on this form. You should consult a lawyer before using this form.

This form must be recorded with the register of deeds before your death or it will not be effective. Any change to this deed must also be recorded to be effective.

Identifying Information

Owner(s) of Property Who Join in This Deed:

___________________________________________________________

___________________________________________________________

Address:

Marital Status of Owner(s):

Legal Description of Property:

__________

__________

__________

Beneficiary or Beneficiaries

I revoke all my prior transfer on death deeds concerning the property, and name the following beneficiary(ies) to receive the property (in equal shares, and as tenants in common, and not as joint tenants with rights of survivorship, unless I say otherwise):

Name and address of Beneficiary(ies)

___________________________________________________________

This transfer is ____ / is not______ subject to the requirement that the named beneficiary survive me by one hundred twenty hours.

Name and address of Contingent Beneficiary(ies)

___________________________________________________________

If no primary beneficiary survives me, I name the following contingent beneficiary(ies) to receive the property (in equal shares, and as tenants in common, and not as joint tenants with rights of survivorship, unless I say otherwise):

___________________________________________________________

___________________________________________________________

___________________________________________________________

Transfer on Death

I hereby convey and transfer upon my death all my interests (whether now owned or hereafter acquired) in the described property to the above listed beneficiary(ies).

Before my death, I may revoke this deed, or any part of this deed.

Exempt from Transfer Fee: § 43-4-22(18)

Signature(s) of Owner(s) Who Join in this Deed

__________    ______________________________

(signature)    (date)

__________    ______________________________

(signature)    (date)

Acknowledgment

(acknowledgment)

Source: SL 2014, ch 133, § 30.

29A-6-431. Optional form of revocation.

The following form may be used to create an instrument of revocation under this part. The provisions of this part govern the effect of this or any other instrument used to revoke a transfer on death deed.

    REVOCATION OF TRANSFER ON DEATH DEED

Identifying Information

Owner(s) of Property Who Join in This Revocation:

___________________________________________________________

___________________________________________________________

Address:

The undersigned, as the owner on the transfer on death deed recorded on (date) __________ in Book _______ of _______, Page _____ in the office of the register of deeds of __________ County, South Dakota, affecting real property legally described as follows: (legal description) _________________________________________________________ hereby revokes the previous transfer.

Dated

Signature/Address

Acknowledgment

Source: SL 2014, ch 133, § 31.

29A-6-432. Optional form of affidavit of confirmation.

The following form or a document that contains substantially all of the following information may be used to create the affidavit of confirmation:

    AFFIDAVIT OF CONFIRMATION AND SURVIVORSHIP FOR TRANSFER ON DEATH DEED

State of South Dakota

County of _________________

I, ________________________, being first duly sworn on oath, state that to my personal knowledge:

1. ________________ (Decedent) is the person named in the certified copy of the Certificate of Death attached hereto.

2. On the date of death, Decedent was an owner of the property in ______________ County, South Dakota, legally described as follows: ___________________________________ and Decedent was the transferor in a transfer on death deed (Deed) recorded on _____________, as in Book ______ of _____, Page _____, in the office of the register of deeds of ______________ County, South Dakota.

3. The name(s) and address(es) of the Designated Beneficiary(ies) named in the Deed who survived the Decedent is(are):

_________________________________________________________

_________________________________________________________

_________________________________________________________

4. The name(s) and address(es) of the contingent beneficiary or person who takes under the anti-lapse statutes and who survived the Decedent.

_________________________________________________________

_________________________________________________________

5. The Designated Beneficiary(ies) named in the Deed who did not survive the Decedent is(are):

_________________________________________________________

_________________________________________________________

Certified copies of Certificate(s) of Death for any deceased Designated Beneficiary(ies) is(are) also attached hereto.

6. Notice of the death of the Decedent has been given to the South Dakota Department of Social Services and it has been determined that no assistance was provided or that any obligation for reimbursement to the department has been satisfied.

Affiant

Notary

Source: SL 2014, ch 133, § 32.

29A-6-433. Uniformity of application and construction.

In applying and construing this part, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

Source: SL 2014, ch 133, § 33.

29A-6-434. Relation to Electronic Signatures in Global and National Commerce Act.

The provisions of this part modify, limit, and supersede the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but do not modify, limit, or supersede Section 101(c) of that Act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that Act, 15 U.S.C. Section 7003(b).

Source: SL 2014, ch 133, § 34.

29A-6-435. Applicability of chapter.

The provisions of this part apply to any transfer on death deed executed, acknowledged, and recorded after July 1, 2014.

Source: SL 2014, ch 133, § 35.