South Dakota Codified Laws 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
(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:
Terms Used In South Dakota Codified Laws 55-2-13
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Common law: The legal system that originated in England and is now in use in the United States. It is based on judicial decisions rather than legislative action.
- Fiduciary: A trustee, executor, or administrator.
- Irrevocable trust: A trust arrangement that cannot be revoked, rescinded, or repealed by the grantor.
- Person: includes natural persons, partnerships, associations, cooperative corporations, limited liability companies, and corporations. See South Dakota Codified Laws 2-14-2
- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- Subpoena: A command to a witness to appear and give testimony.
- Trustee: A person or institution holding and administering property in trust.
- Trustor: The person who makes or creates a trust. Also known as the grantor or settlor.
- written: include typewriting and typewritten, printing and printed, except in the case of signatures, and where the words are used by way of contrast to typewriting and printing. See South Dakota Codified Laws 2-14-2
(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.