South Dakota Codified Laws 55-4-57. Time for commencing judicial proceeding to contest validity oftrust–Distribution of trust property–Recovery of improper distribution–Notice
(a) A judicial proceeding to contest whether a revocable trust or any amendment thereto, or an irrevocable trust was validly created may not be commenced later than the first to occur of:
(1) One year after the settlor’s death;
Terms Used In South Dakota Codified Laws 55-4-57
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- 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
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- 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- Irrevocable trust: A trust arrangement that cannot be revoked, rescinded, or repealed by the grantor.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
- Property: includes property, real and personal. 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- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- Trustee: A person or institution holding and administering property in trust.
- Trustee: includes trustees, a corporate as well as a natural person and a successor or substitute trustee. See South Dakota Codified Laws 55-4-1
- 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
(2) Sixty days after the trustee, trust advisor, trust protector, or the settlor sent the person who is contesting the trust a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee‘s name and address, and of the time allowed for commencing a proceeding;
(3) Upon notice of entry of an order of adjudication of the trust’s validity as a result of a petition filed before the settlor’s death by any fiduciary of the trust or the settlor of a trust;
(4) Upon notice of entry of an order of any other adjudication of the trust’s validity or the date the person’s right to contest was precluded by consent or other limitation;
(5) The last date a petition for review of a will could be filed under South Dakota law, if the trust was revocable at the settlor’s death and the trust was specifically referred to in the settlor’s last will; or
(6) Upon notice of entry of a court’s order approving a conservator’s proposal to create a trust or amendment thereto if the trust or trust amendment was created pursuant to and in conformity with § 29A-5-419 or 29A-5-420.
(b) Upon the death of the settlor of a trust that was revocable at the settlor’s death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless:
(1) The trustee knows of a pending proceeding contesting the validity of the trust; or
(2) A potential contestant has notified the trustee of a possible proceeding to contest the trust and a proceeding is commenced within sixty days after the contestant sent the notification.
(c) A beneficiary of a trust that is determined to have been invalid is liable to return any distribution received for proper distribution. If the beneficiary refuses to return the distribution, the beneficiary may be liable for all costs, including attorney fees, incurred for the recovery of the distribution.
(d) Notice given by the trustee, trust protector, trust advisor or settlor under this section shall be given to all beneficiaries of a trust and all heirs at law of the trust settlor.
(e) With respect to notices to beneficiaries and potential contestants under this section, if personal service is not made, then the notice shall be mailed certified or registered mail, postage prepaid, to the last known address of the person, and absent evidence to the contrary, notice to the person is presumed to have been made on the date of delivery to the last known address of the person, when there is proof of delivery.
(f) No trustee, trust advisor, or trust protector may incur any liability to any person or otherwise for failure to provide any written notice discussed above.
(g) Any trustee, trust advisor, trust protector, or the settlor may petition the court for a judicial order confirming that a trust is valid and enforceable under its current terms, pursuant to the procedures as set forth in chapter 21-22.
(h) The provisions of chapter 55–18 apply to this section.
Source: SL 2010, ch 232, § 11; SL 2013, ch 239, § 24; SL 2017, ch 204, § 21; SL 2017, ch 208, § 35.