Updated January 25, 2024
The South Dakota living trust is a document in which assets are transferred to benefit the Grantor during their lifetime or in the event that they die or incapacitated. The Trustee (or Successor Trustee if the Grantor is also the Trustee) will maintain control of the Grantor’s living trust in the event of disability instead of a court-appointed conservator (as in the case of a Will.) A living trust gives the Beneficiary, or Beneficiaries, unrestricted access to the income and assets in said trust once the Grantor dies. A living trust, unlike a Will, avoids a probate process. This means the distribution of the Grantor’s estate is a private matter and is often a quicker and less costly ordeal. Furthermore, a Grantor can make amendments to their living trust throughout their lifetime, although this is not applicable to irrevocable trusts.
Laws – Title 55 (Fiduciaries and Trusts)
Registration (§ 55-1-56) – At the option of the Trustee, a trust may be registered at the local court where the principal place of administration is located using Registration Application. This is not required but recommended after the creation of the trust.
Will (Last Will and Testament) – A living trust only includes assets that have been registered to the trust. Any other assets should be written in the Grantor’s last will and testament. These assets will be distributed to the appropriate heirs during the probate process upon the death of the Grantor.
Types
Irrevocable – An irrevocable trust cannot be altered once it has been signed but comes with certain estate tax and asset protection benefits.
Revocable – A revocable living trust can be amended at any point in time throughout a Grantor’s life. All assets funded into the trust remain to be personal assets but will be subject to creditor and estate tax claims. Upon the Grantor’s death, a revocable trust becomes irrevocable.
Individual Roles
A living trust has four (4) roles attached to it:
Grantor (or “Settlor”) – Person who creates the trust.
Trustee – The person in charge of the trust while the Grantor is still alive. The Grantor is often also the Trustee, although this is prohibited when creating an irrevocable trust.
Successor Trustee – Person in charge of the trust upon the death of the Grantor or in the event that a physical or mental disability hinders the Grantor’s ability to perform the necessary duties.
Beneficiaries – Individuals named as the inheritors of all assets in the living trust upon the death of the Grantor.
How to Make a Living Trust in South Dakota
A living trust established in South Dakota must be in accordance with Chapter 55-1 and must be created while the Grantor is of sound mind. The Grantor can appoint anyone as Trustee, even themselves, but a Successor Trustee must be appointed as well. To designate the inheritance of the Grantor’s assets once they die, beneficiaries must be listed in the trust. Living trusts do not need to be signed in front of witnesses but it is recommended that the Grantor have a notary public present when he/she signs. Assets can then be transferred into the trust.
Real Estate – In order to transfer real estate to a trust, a South Dakota Quit Claim Deed or South Dakota Warranty Deed must be produced (check with an attorney to find out which deed is best for your situation.)
Stocks and Bonds – Generally, the Grantor will send a notarized letter stating their intent to transfer the account along with the original certificates, a copy of the trust instrument, the authorization of change in ownership from power of attorney, and an IRS Form W-9.
Motor Vehicles – In order to transfer any vehicle property to a living trust, a South Dakota Bill of Sale Form is required.
Do I Need a Living Trust in South Dakota?
Those who have large estates could benefit from a living trust in a variety of ways such as controlling their assets during life and after death, protecting their assets in the event that they become mentally incapacitated, and distributing assets to beneficiaries after death without probate.
A living trust could be slightly less beneficial for those with a net worth of personal property valued at $100,000 or less. In these situations, according to South Dakota law § 29A-3-1201, heirs can obtain the property of the deceased without probate through a South Dakota Small Estate Affidavit. However, drafting a living trust in these situations can simplify the estate’s transfer at death and avoid any proceedings, whether they involve probate or other administration.