South Dakota Living Trust
The South Dakota rules that shape the document: the SDCL 55-3-6 default of irrevocability unless you reserve the power to revoke, the SDCL 43-5-8 abolition of the Rule Against Perpetuities, and the opt-in Special Spousal Trust under SDCL chapter 55-17.
Find out where you stand in South Dakota
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Introduction
A living trust lets you transfer assets to a trustee during your lifetime so they pass to your beneficiaries without going through South Dakota probate, but only for what you actually fund into it; anything still titled in your own name goes through probate regardless of what the trust document says. South Dakota reverses the assumption most other states make: SDCL 55-3-6 makes a trust irrevocable by default unless the instrument expressly reserves a power to revoke or modify it, so a South Dakota living trust that omits that clause is not revocable at all. South Dakota also never adopted the modern Uniform Trust Code, running instead on the 1937 Uniform Trusts Act at SDCL chapter 55-4 layered onto older trust-creation provisions in chapter 55-3, and its trust-industry reputation for asset protection (SDCL chapter 55-16) does not extend to the ordinary revocable trust covered here, because that chapter requires an irrevocable trust that a revocable one, by its nature, is not; South Dakota's separate abolition of the Rule Against Perpetuities in SDCL 43-5-8, by contrast, is a blanket rule with no irrevocability condition attached.
Key Things to Know
- 1
South Dakota trusts are irrevocable by default. SDCL 55-3-6 provides that a trust is irrevocable unless the instrument expressly reserves the settlor's power to revoke or modify it, the reverse of most states' default. Confirm your South Dakota living trust actually contains a revocation clause.
- 2
No notary or witness is required to create the trust itself. SDCL 55-3-2 requires only the mutual consent of the trustor and trustee, and SDCL 55-3-4 confirms the terms are simply expressed in the declaration of trust. A notary is still needed for the certificate of trust (SDCL 55-4-51) and for the deed that funds real property into the trust.
- 3
Homestead protection in a trust is unresolved. SDCL 43-31-1 exempts the homestead from judicial sale and judgment liens with no dollar cap for the ordinary case, but no South Dakota statute or reported decision says whether that protection survives a deed of the homestead into a revocable trust. Ask a South Dakota attorney before funding your home.
- 4
Funding South Dakota real property into the trust normally triggers a transfer fee of fifty cents per five hundred dollars of value under SDCL 43-4-21, but a fiduciary or gift transfer that funds a living trust typically qualifies for the exemption in SDCL 43-4-22(15) or (16). The exempt deed must state the exemption and cite the subdivision relied on.
- 5
South Dakota is a separate-property state, not a community-property state. A married couple can opt into community-property tax treatment only by executing a South Dakota Special Spousal Trust under SDCL chapter 55-17, which requires an express declaration, at least one qualified South Dakota trustee, and the warning statement SDCL 55-17-2 mandates. An ordinary living trust is not one of these unless drafted that way.
- 6
No South Dakota statute requires an ordinary revocable living trust to be registered or filed with any court or state agency. SDCL chapter 21-22 creates only an optional court-supervised filing regime that commences only if a trustee affirmatively invokes it.
- 7
A revocable living trust gets none of South Dakota's asset-protection reputation. SDCL 55-1-36 confirms your creditors can reach trust assets during your lifetime the same as property you own outright, because a revocable trust is not a qualified disposition under the asset-protection statute in SDCL chapter 55-16. SDCL 29A-2-202's elective share also reaches revocable trust assets under SDCL 29A-2-205, so the trust does not defeat a surviving spouse's share either.
Key decisions before you file
Before you file a Living Trust in South Dakota, a few decisions shape the document: which option to choose and what each one means. The Living Trust guide walks through them.
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South Dakota Requirements for Living Trust
South Dakota Trusts Are Irrevocable Unless Revocation Is Reserved
SDCL 55-3-6 makes a South Dakota trust irrevocable by default unless the instrument expressly reserves the settlor's power to revoke or modify it, the reverse of the default in most other states. The revocation clause must be in the instrument itself.
South Dakota Transfer Fee Exemption for Funding Deeds
SDCL 43-4-21 sets a real estate transfer fee of fifty cents per five hundred dollars of value. SDCL 43-4-22(15) and (16) exempt a fiduciary transfer or a gift transfer, which typically covers a deed funding a living trust, provided the deed states the exemption and cites the subdivision relied on.
South Dakota Certificate of Trust Must Be Notarized
SDCL 55-4-51 requires the signature on a certificate of trust to be acknowledged or verified under oath before a notary public, unlike states where the certificate needs no notarization. The certificate may be recorded with the register of deeds under SDCL 55-4-51.1.
South Dakota Homestead Interaction With a Trust Is Unresolved
SDCL 43-31-1 exempts the homestead from judicial sale and judgment liens without a dollar cap, but no South Dakota statute or reported decision addresses whether that protection survives a deed of the homestead into a revocable trust. Consult a South Dakota attorney before funding the homestead into the trust.
South Dakota Special Spousal Trust Is Opt-In, Not Automatic
South Dakota is a separate-property state. SDCL chapter 55-17 lets a married couple opt into community-property tax treatment through a Special Spousal Trust that requires an express declaration, at least one qualified South Dakota trustee, and the warning statement required by SDCL 55-17-2. An ordinary living trust does not get this treatment automatically.
South Dakota Has No Mandatory Trust Registration
No provision of SDCL Title 55 requires an ordinary revocable living trust to be registered or filed with any court or state agency. SDCL chapter 21-22 creates only an optional court-supervised filing regime that commences only if a trustee affirmatively invokes it.
South Dakota Elective Share and Creditor Exposure Reach Revocable Trust Assets
SDCL 29A-2-202 and 29A-2-205 pull revocable living trust assets into the augmented estate for a surviving spouse's elective share, and SDCL 55-1-36 leaves those same assets exposed to the settlor's creditors during life, because South Dakota's asset-protection statute, chapter 55-16, requires irrevocability.