South Dakota § 55-18-1 - Definitions.

§ 55-18-1. Definitions.

Terms used in this chapter mean:

(1)    "Bind" or "bound," to consent, receive notice or service of process, approve, agree, object, resist, waive, or demand for or as a person with the same binding and conclusive effect as if the person represented had;

(2)    "Conflict of interest," a situation in which a representative's interest in the trust causes a significant likelihood that a reasonable person would disregard a representative's duty to a represented beneficiary. A conflict of interest, however, excludes:

(a)    Any adversity, conflict or opposed interests substantially unrelated to the representative's interest in the trust;

(b)    Any past situation which is not likely to re-occur; and

(c)    Any conflict of interest which falls short of a material conflict of interest;

(3)    "Co-representative," more than one simultaneously acting representative of the same class pursuant to § 55-18-9, as when co-guardians are acting:

(4)    "Conservator," a person appointed pursuant to chapter 29A-5 or equivalent provisions of another jurisdiction's laws including a temporary conservator, a guardian ad litem, and a limited conservator;

(5)    "Fiduciary," a person defined by subdivision 21-22-1(3), except as used in § 55-18-17;

(6)    "Guardian," a person appointed pursuant to chapter 29A-5 or equivalent provisions of another jurisdiction's laws including a temporary guardian and a limited guardian;

(7)    "Incapacitated" or "incapacity," lacking the capacity to meaningfully understand the matter in question because of a mental or physical impairment;

(8)    "Interest," a beneficial interest as defined by subdivision 55-1-24(1) but including the holder of a power of appointment, and any power to remove or replace a fiduciary or a representative;

(9)    "Interested beneficiary," a person who, on the date the person's qualification is determined:

(a)    Is a current 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 current distributees terminated on that date;

(c)    Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date;

(d)    Holds a power of appointment; or

(e)    Would hold a power of appointment if the interests of the current distributees terminated on that date or the interests of the persons currently holding a power of appointment under this subdivision terminated on that date;

(10)    "Knows" or "knowingly," actual knowledge of the fact in question;

(11)    "Minor," any person who has not attained the age of eighteen. The term includes a minor with an incapacity;

(12)    "Nonjudicial settlement," an agreement, release, or other action whether or not approved by a court, which may include, without limitation:

(a)    The interpretation or construction of the terms of a trust;

(b)    The approval of any fiduciary's report or accounting;

(c)    Direction to any fiduciary to refrain from performing a particular act or the grant to a fiduciary of any necessary or desirable power;

(d)    The resignation or appointment of any fiduciary;

(e)    The determination of a fiduciary or a representative's compensation;

(f)    The transfer of a trust's principal place of administration or situs;

(g)    The liability of any fiduciary's action or omission relating to a trust;

(h)    Partial or final settlement agreements regarding a trust or its administration; or

(i)    The modification, amendment, reformation, or termination of a trust;

(13)    "Notice" or "notifies," notice provided in accordance with § 55-2-24;

(14)    "Notifier," a person who is undertaking notice or proposing consent with regard to a matter concerning a trust;

(15)    "Power of appointment," a power defined by § 55-1-12;

(16)    "Proceeding," any judicial or nonjudicial trust proceeding, accounting, termination, modification, reformation, decanting, settlement, nonjudicial settlement, and any proceeding conducted pursuant to chapter 21-22 or title 29A which concerns a trust;

(17)    "Protected person," a person other than a minor for whom a guardian or conservator is appointed;

(18)    "Reasonably available," with respect to a person, that the person can be identified and located with the exercise of reasonable diligence;

(19)    "Representative," a person who may bind another person pursuant to § 55-18-9;

(20)    "Trust," an express inter vivos or testamentary trust; and

(21)    "Uninterested beneficiary," a beneficiary other than an interested beneficiary.

Source: SL 2017, ch 208, § 2; SL 2018, ch 275, § 31; SL 2019, ch 209, § 9; SL 2021, ch 207, § 3; SL 2023, ch 161, § 16.