85
th Legislative Session _ 2010
Committee: Senate Judiciary
Thursday, February 11, 2010
P - Present
E - Excused
A - Absent
Roll Call
P Gillespie
P Heidepriem
P Schmidt
P Turbak Berry
P Vehle
P Tieszen, Vice-Chair
P Abdallah, Chair
OTHERS PRESENT: See Original Minutes
The meeting was called to order by Senator Gene G. Abdallah, Chair.
MOTION: TO APPROVE THE MINUTES OF TUESDAY, FEBRUARY 9, 2010
Moved by: Tieszen
Second by: Vehle
Action: Prevailed by voice vote.
MOTION: TO APPROVE THE MINUTES OF THURSDAY, FEBRUARY 4, 2010
Moved by: Vehle
Second by: Tieszen
Action: Prevailed by voice vote.
THE CHAIR DEFERRED SB 179 UNTIL TUESDAY, FEBRUARY 16, 2010
SB 103: revise certain provisions relating to trusts.
Presented by: Senator Dave Knudson
Proponents: Bret Afdahl, Department of Revenue & Regulation
MOTION: AMEND SB 103
103ja
On page 10, line 16, of the printed bill, delete "54" and insert "55".
On page 11, between lines 8 and 9, insert:
" Section 10. That chapter 55-4 be amended by adding thereto a NEW SECTION to read as
follows:
A certificate of a trustee or of trustees of a trust in support of a real property transaction may be
substantially in the following form:
This instrument was prepared by:
__________________________
__________________________
__________________________
(insert name, address and phone number)
CERTIFICATE
OF TRUST
STATE OF SOUTH DAKOTA)
: SS
COUNTY OF MINNEHAHA )
________________________, being duly sworn under oath, does hereby state as follows:
1. A trust instrument or Will executed on _________________ established a trust which is still in
existence on the date this Certificate is signed. The name of the trust, if it has been named, is
_____________________. (Insert n/a if the Trust does not have a name)
2. The name of the settlor, grantor, trustor, testator or testatrix, as the case may be, is
__________________________________________________________________.
3. The name of each original trustee and the name and address of each trustee and each trust
protector currently empowered to act under the trust instrument or Will on the date of the
execution of this Certificate of Trust is as follows:
____________________________________________________________________________
___________________________________________________________________________.
4. The person who signs this certificate below certifies that the trust instrument or Will contains
the following powers which are given to the trustee:
_____________________________________________________________________ ,
the following powers are given to the trust protector:
______________________________________________________________________ ,
and further contains the following provisions:
______________________________________________________________________ .
The number of trustees required to join in an action by the provisions of the trust instrument or Will to is ___________.
5. The trust is revocable/irrevocable./The following person(s) has/have the right to revoke the trust:
_____________________________________________________________.
The trust has not been revoked.
6. The trust is/is not supervised by a court. The following restrictions are currently imposed by the
court on the trustee(s) ability to act even though actions so restricted may be permitted by statute
or the terms of the trust instrument or Will:
_______________________________________________________________________.
7. The Trustee intends to convey the following property owned by the Trust:
_______________________________________________________________________.
8. The trust has not been modified or amended in any manner that would cause the representations
contained in this Certificate of Trust to be incorrect. The statements contained in this Certificate
of Trust are true and correct.
___________________________________
STATE OF SOUTH DAKOTA )
: SS
COUNTY OF )
On this, the _____ day of _______________, 20___, before me, the undersigned officer,
personally appeared , known to me or satisfactorily proven to be the person whose name is
subscribed to the within instrument and acknowledged that she/he executed the same for the
purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
______________________________________
Notary Public, South Dakota
My Commission expires: __________".
On page 12, delete lines 6 to 24, inclusive, and insert:
"
(a) After the death of a settlor, and subject to the settlor's right to direct the source from which
liabilities will be paid, the property of a trust that was revocable at the settlor's death is subject to
claims of the settlor's creditors, costs of administration of the settlor's estate, the expenses of the
settlor's funeral and disposal of remains, and statutory allowances to a surviving spouse and children
to the extent the settlor's probate estate is inadequate to satisfy those claims, costs, and expenses.
(1) If the trustee has knowledge of a creditor or potential creditor, provide written notice to
the creditor or potential creditor at their last known address, advising the creditor that a
claim may not be paid if the creditor fails to present a claim within sixty days of the date
of such notice; and
(2) For all unknown creditors and all creditors which the trustee, in good faith, is unable to
locate, publish notice to such creditors once a week for three successive weeks in a legal
newspaper in the county:
(A) Where the settlor was last a resident if the deceased settlor was a resident of South
Dakota; or
(B) Where the principal administration of the trust takes place if the deceased settlor
was a nonresident of South Dakota.
The published notice shall state that creditors of a deceased settlor must present
their claim within four months after the date of the first publication of the notice
or any claim or collection efforts which otherwise could have been asserted or
enforced against the trust or assets thereof may be barred.
For purposes of this section, a trustee has knowledge of a creditor or potential
creditor if the trustee is aware that the creditor has demanded payment from the
settlor or the settlor's estate.
(c) Creditors of the deceased settlor who are given written notice or receive notice by publication
are barred if no claim is filed within the applicable period.
(d) Claims by a creditor of a deceased settlor may be presented to the trustee by any of the
following three methods:
(1) The creditor may deliver or mail to the trustee a written statement of the claim indicating
its basis, the name and address of the creditor, and the amount claimed;
(2) If the trust is court-supervised, the creditor may file a written statement of the claim with
the clerk of courts and mail or deliver a copy thereof to the trustee. The claim is deemed
presented on the first to occur of the receipt of the written statement of claim by the
trustee, or the filing of the claim with the clerk of courts; or
(3) The creditor may commence a proceeding against the trust in any court where the trustee
may be subject to jurisdiction, to obtain payment of the claim. Such a claim is deemed
presented on the date the proceeding is commended.
(e) If a claim is not yet due, the date when it will become due shall be stated in the written
statement of the claim. If the claim is contingent or unliquidated, the nature of the uncertainty shall
be described. If the claim is secured, the nature of the security shall be described. Failure to describe
correctly the nature of the security or uncertainty, or the due date of a claim not yet due, does not
invalidate the presentation.
(f) No presentation of claim is required in regard to matters claimed in proceedings against a
settlor which were pending at the time of the death of the settlor in any court.
(g) No trustee may incur liability for a nonnegligent or nonwillful failure to give notice to a
particular creditor.
(h) If the applicable assets of the trust that are otherwise subject to the claim of an unbarred
creditor are insufficient to pay the claim in full, the trustee shall make payment in the following
order:
(1) Costs and expenses relating to administration of the trust or estate;
(2) Reasonable funeral expenses of the settlor;
(3) Debts and taxes with preference under federal law;
(4) Debts and taxes with preference under other laws of this state;
(5) All other claims.
(i) In paying claims of a deceased settlor, the trustee shall give no preference in the payment of
any claim over any other claim of the same class, and a claim due and payable is not entitled to a
preference over claims not yet due except as to claims which are compromised in part or in full.
(j) Upon the death of the settlor of a trust that was revocable at the settlor's death, the trustee may
proceed to pay creditor claims with the trust property in accordance with the terms of the trust and
this section. 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 regarding
a creditor's claim; or
(2) A potential contestant or creditor has notified the trustee of a possible proceeding to
contest the trust or regarding a creditor's claim, and a proceeding is commenced within
sixty days after the contestant sent the notification.
However, the trustee may pay creditor claims without liability so long as the trustee
determines that, at the time of the determination, the assets of the trust are reasonably
adequate to allow for payment of the claim in view of the type of proceeding, the amount
at issue, and the likelihood of its probable success.
(k) A creditor who has received a payment from the trustee, if it is later determined to have been
invalid, or wrongfully paid under this section, is liable to return any payment received to the trustee.
If the creditor refuses to return the payment, the creditor may be liable for all costs, including
attorney's fees, incurred for the recovery of the payment.
(l) Except as to creditors barred by publication or by written notice, the statute of limitations
provisions of §§ 29A-3-802(b) and 29A-3-803(a)(3) apply.
(m) Nothing in this section requires a trustee to give notice to a secured creditor of a settlor, nor
diminish the rights of a secured creditor under applicable law.".
Delete pages 13 and 14, inclusive.
On page 25, after line 17, insert:
" Section 27. That § 55-16-5 be amended to read as follows:
55-16-5. Any individual may serve as a fiduciary an investment trust advisor described in
subdivision 55-1B-1(4) 55-1B-1(6), notwithstanding that such individual is the transferor of the
qualified disposition, but such an individual may not otherwise serve as a fiduciary of a trust that is
a qualified disposition except with respect to the retention of the veto right permitted by subdivision
55-16-2(2). ".
Moved by: Vehle
Second by: Heidepriem
Action: Prevailed by voice vote.
MOTION: DO PASS SB 103 AS AMENDED
Moved by: Vehle
Second by: Heidepriem
Action: Prevailed by roll call vote. (7-0-0-0)
Voting Yes: Gillespie, Heidepriem, Schmidt, Turbak Berry, Vehle, Tieszen, Abdallah
MOTION: PLACE SB 103 ON CONSENT CALENDAR
Moved by: Tieszen
Second by: Heidepriem
Action: Prevailed by voice vote.
SB 43: authorize the Public Utilities Commission to recover and disburse certain
damages on behalf of retail customers of telecommunications companies.
Presented by: Rolayne Wiest, Public Utilities Commission
MOTION: DEFER SB 43 TO THE 41
ST LEGISLATIVE DAY
Moved by: Heidepriem
Second by: Tieszen
Action: Prevailed by roll call vote. (7-0-0-0)
Voting Yes: Gillespie, Heidepriem, Schmidt, Turbak Berry, Vehle, Tieszen, Abdallah
SB 44: authorize the Public Utilities Commission to conduct certain rule-making
proceedings by teleconference.
Presented by: Rolayne Wiest, Public Utilities Commission
MOTION: DEFER SB 44 TO THE 41
ST LEGISLATIVE DAY
Moved by: Vehle
Second by: Gillespie
Action: Prevailed by roll call vote. (7-0-0-0)
Voting Yes: Gillespie, Heidepriem, Schmidt, Turbak Berry, Vehle, Tieszen, Abdallah
MOTION: MOVED THAT THE CONSENT CALENDAR VOTE BY WHICH SB 103 WAS
PASSED, BE RESCINDED
Moved by: Heidepriem
Second by: Vehle
Action: Prevailed by voice vote.
SB 12: provide for a tiered sex offender registry and to establish certain criteria for
eligibility to petition for removal or reassignment.
MOTION: AMEND THE PENDING AMENDMENT
12ro
On the previously adopted amendment (12rb) in Section 2, before subdivision (3), insert:
"or
(d) Sexual contact under § 22-22-7 if the victim was between the ages of thirteen and
sixteen and the petitioner was at least three years older than the victim, but only if
the petitioner was twenty-two years of age but not more than twenty-five years of
age at the time the offense was committed;"
Moved by: Gillespie
Action: Died for lack of a second.
MOTION: DO PASS SB 12 AS AMENDED
Moved by: Heidepriem
Second by: Gillespie
Action: Prevailed by roll call vote. (7-0-0-0)
Voting Yes: Gillespie, Heidepriem, Schmidt, Turbak Berry, Vehle, Tieszen, Abdallah
SB 5: revise certain provisions relating to the registration of juvenile sex offenders.
Opponents: Marty Jackley, Attorney General
Ryan Kolbeck, SD Assn. of Criminal Defense Lawyers
MOTION: DEFER SB 5 TO THE 41
ST LEGISLATIVE DAY
Moved by: Tieszen
Second by: Schmidt
Action: Prevailed by roll call vote. (7-0-0-0)
Voting Yes: Gillespie, Heidepriem, Schmidt, Turbak Berry, Vehle, Tieszen, Abdallah
SB 6: revise the criteria for removal from the sex offender registry.
Opponents: Marty Jackley, Attorney General
Ryan Kolbeck, SD Assn. of Criminal Defense Lawyers
MOTION: DEFER SB 6 TO THE 41
ST LEGISLATIVE DAY
Moved by: Tieszen
Second by: Schmidt
Action: Prevailed by roll call vote. (7-0-0-0)
Voting Yes: Gillespie, Heidepriem, Schmidt, Turbak Berry, Vehle, Tieszen, Abdallah
SB 9: limit misdemeanor eligibility for registration on the sex offender registry.
Opponents: Marty Jackley, Attorney General
Ryan Kolbeck, SD Assn. of Criminal Defense Lawyers
MOTION: DEFER SB 9 TO THE 41
ST LEGISLATIVE DAY
Moved by: Tieszen
Second by: Schmidt
Action: Prevailed by roll call vote. (7-0-0-0)
Voting Yes: Gillespie, Heidepriem, Schmidt, Turbak Berry, Vehle, Tieszen, Abdallah
SB 167: provide for the reconfiguration of the South Dakota sex offender registry to
facilitate enhanced utilization by the public.
Presented by: Senator Sandy Jerstad
Proponents: Marty Jackley, Attorney General
MOTION: DEFER SB 167 TO THE 41
ST LEGISLATIVE DAY
Moved by: Tieszen
Second by: Vehle
Action: Prevailed by roll call vote. (6-1-0-0)
Voting Yes: Gillespie, Schmidt, Turbak Berry, Vehle, Tieszen, Abdallah
Voting No: Heidepriem
SB 132: permit the utilization of certaion DNA samples to determine parentage under
certain conditions.
Presented by: Senator Tom Hansen
Proponents: Charlie McGuigan, Office of the Attorney General
MOTION: AMEND SB 132
132ra
On page 1, line 7, of the printed bill, delete "to determine parentage".
Moved by: Tieszen
Second by: Heidepriem
Action: Prevailed by voice vote.
MOTION: DO PASS SB 132 AS AMENDED
Moved by: Heidepriem
Second by: Vehle
Action: Prevailed by roll call vote. (7-0-0-0)
Voting Yes: Gillespie, Heidepriem, Schmidt, Turbak Berry, Vehle, Tieszen, Abdallah
SB 163: revise the penalty for first degree manslaughter.
Presented by: Senator Jim Bradford (Handouts: #1)
Representative Richard Engels
Proponents: Brad Schreiber, SD Assoc. of Criminal Defense Lawyers
Opponents: Charles McGuigan, Office of Attorney General
MOTION: DO PASS SB 163
Moved by: Turbak Berry
Second by: Gillespie
Action: Failed by roll call vote. (2-5-0-0)
Voting Yes: Gillespie, Turbak Berry
Voting No: Heidepriem, Schmidt, Vehle, Tieszen, Abdallah
MOTION: DEFER SB 163 TO THE 41
ST LEGISLATIVE DAY
Moved by: Tieszen
Second by: Vehle
Action: Prevailed by roll call vote. (6-1-0-0)
Voting Yes: Gillespie, Heidepriem, Schmidt, Vehle, Tieszen, Abdallah
Voting No: Turbak Berry
THE CHAIR DEFERRED SB 185 UNTIL TUESDAY, FEBRUARY 16, 2010
MOTION: ADJOURN
Moved by: Gillespie
Second by: Tieszen
Action: Prevailed by voice vote.
Rena Ortbahn
____________________________
Committee Secretary
Gene G. Abdallah, Chair
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