55-1A-41. Co-trustee appointment--Powers.
Unless specifically restricted by the governing instrument, a trustee may appoint an individual or a corporate fiduciary as a co-trustee. The appointed co-trustee may serve only as long as the appointing trustee serves, or as long as the last to serve if more than one trustee appointed the co-trustee. The appointed co-trustee may not become a successor trustee upon the death, resignation, or incapacity of the appointing trustee, unless appointed under the terms of the governing instrument or unless no other successor trustee, or method for appointing a successor trustee, is provided in the governing instrument.
The powers and the responsibilities of the appointed co-trustee may be limited by the appointing trustee in a writing signed by the appointing trustee at the time of the appointment. If the powers or responsibilities are so limited, the powers or responsibilities of the co-trustee shall be limited as set forth in writing. Unless the powers or responsibilities are so limited, the appointed co-trustee may exercise all the powers of the appointing trustee. The combined powers of the appointed co-trustee and the appointing trustee may not exceed the powers of the appointing trustee alone. The trustee appointing a co-trustee may, in writing, revoke the appointment at any time, with or without cause.
Unless specifically restricted by the governing instrument, if the governing instrument gives a fiduciary other than the trustee the power to remove and replace the trustee, such power includes the power to appoint a co-trustee to serve with the current trustee.
If an appointment under this section confers upon the appointed co-trustee, to the exclusion of another co-trustee, the power to take certain actions, including the power to direct or prevent certain actions of the trustees, the limitations on liability and the relief from duties and obligations afforded an excluded fiduciary under § 55-1B-2 apply to a co-trustee who does not hold such power.
If the governing instrument is silent concerning the trustee's power to appoint a co-trustee, the trustee shall notify in writing, the trustor, if living, and all current income and principal beneficiaries at least thirty days prior to the effective date of the trustee's exercise of the power granted under this section. The notice, which shall include a copy of the proposed action, shall advise the trustor and current beneficiaries that if they object to the trustee's appointment they need to file a written objection with the trustee prior to the effective date set out in the notice of the proposed action. If an objection is received by the trustee, prior to the effective date of the appointment, the trustee may not appoint a co-trustee. However, this section does not limit the power of the trustee under law to petition the court for approval of the appointment. If no objection has been timely made, the proposed appointment shall go into effect on the later of the date set out in the notice or thirty days after notice has been given. The notice shall be sent by any means allowed under the terms of the trust instrument, by mail with postage prepaid to the last known address of the trustor or current beneficiary, or by means otherwise allowed by law.
The provisions of this section are effective for trusts created before, on, or after July 1, 2017, except as otherwise directed by the trustor, trust protector, trust advisor, or other fiduciary designated by the terms of the trust.
Source: SL 2017, ch 204, §12; SL 2019, ch 209, §4; SL 2021, ch 207, § 8.
Structure South Dakota Codified Laws
Title 55 - Fiduciaries and Trusts
Section 55-1A-2 - Trustee defined.
Section 55-1A-5 - Retention of trust property by trustee.
Section 55-1A-6 - Additions to trust assets.
Section 55-1A-7 - Operation of business by trustee.
Section 55-1A-8 - Acquisition of undivided interest in trust asset.
Section 55-1A-9 - Investment of trust assets.
Section 55-1A-9.1 - Affiliated investments.
Section 55-1A-10 - Deposit of trust funds in bank.
Section 55-1A-11 - Disposal of trust assets.
Section 55-1A-12 - Grant or taking of option for disposition of assets.
Section 55-1A-13 - Leases by trustees.
Section 55-1A-14 - Repairs by trustee--Removal or demolition.
Section 55-1A-15 - Razing or erection of party walls or buildings.
Section 55-1A-16 - Land development or dedication--Valuation adjustments.
Section 55-1A-17 - Mineral and natural resource leases and explorations.
Section 55-1A-19 - Voting stock or securities--Voting trust agreements.
Section 55-1A-21 - Corporate powers--Stocks--Reorganizations and mergers--Sales and leases.
Section 55-1A-22 - Holding stock in nominee's name without disclosing fiduciary relationship.
Section 55-1A-23 - Borrowing money against trust assets.
Section 55-1A-24 - Contracts binding upon trust.
Section 55-1A-25 - Claims in favor of or against trust or trustee.
Section 55-1A-26 - Release of claim or lien.
Section 55-1A-27 - Payment of trust administration expenses.
Section 55-1A-28 - Creation of reserves.
Section 55-1A-30 - Distribution of property and money.
Section 55-1A-31 - Employment of agents and assistants.
Section 55-1A-32 - Prosecution or defense of actions and proceedings.
Section 55-1A-33 - Advance of income or loan to beneficiary--Lien.
Section 55-1A-34 - Advance of money for protection of trust--Lien.
Section 55-1A-35 - Execution and delivery of instruments.
Section 55-1A-36 - Holding of two or more trusts with undivided interests.
Section 55-1A-37 - Citation of chapter.
Section 55-1A-38 - Trustee may perform necessary and appropriate acts.
Section 55-1A-39 - Disclaimer of powers by trustee--Time limit.