REVOCABLE LIVING TRUST AGREEMENT
OF [SETTLOR FULL LEGAL NAME]
(A South Dakota Revocable Living Trust)
TABLE OF CONTENTS
I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block
Schedule A – Initial Trust Estate
[// GUIDANCE: Bracketed text such as [SETTLOR FULL LEGAL NAME] is intended for attorney customization. Delete guidance comments prior to final execution.]
I. DOCUMENT HEADER
-
Parties.
This Revocable Living Trust Agreement (“Agreement”) is made as of [EFFECTIVE DATE] (“Effective Date”) by and between [SETTLOR FULL LEGAL NAME], an individual residing at [SETTLOR ADDRESS] (“Settlor”), and [INITIAL TRUSTEE FULL LEGAL NAME], whose principal address is [TRUSTEE ADDRESS] (“Trustee”). -
Recitals.
A. Settlor desires to create a revocable trust under South Dakota law to hold and manage certain property for the benefit of Settlor during Settlor’s lifetime and, upon Settlor’s death, for the benefit of the persons and purposes herein designated.
B. Trustee is willing to accept the trusteeship and to administer the Trust Estate pursuant to the terms and conditions of this Agreement.
C. The parties intend that this Trust be governed by the laws of the State of South Dakota relating to inter-vivos revocable trusts. -
Consideration.
In consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Settlor hereby establishes the [SETTLOR NAME] REVOCABLE LIVING TRUST (“Trust”).
II. DEFINITIONS
The following terms, used throughout this Agreement, shall have the meanings set forth below:
“Accounting Period” – A calendar year or such shorter period as may exist from the Effective Date to December 31 of that year, or from January 1 to the date of final distribution or trustee change.
“Beneficiary” – An individual, trust, or organization entitled to receive distributions under Article III, including contingent and remainder beneficiaries.
“Disability” or “Incapacity” – A condition in which Settlor is unable to manage Settlor’s affairs, as certified in writing by two licensed physicians or as adjudicated by a court of competent jurisdiction.
“Governing Law” – The statutory and common law of the State of South Dakota, without regard to conflicts-of-law principles.
“Initial Trust Estate” – The property described on Schedule A, together with any additional property hereafter transferred to and accepted by the Trustee.
“Successor Trustee” – Any person or institution appointed pursuant to Section III.12 who becomes trustee upon the resignation, removal, incapacity, or death of a prior trustee.
“Trust” or “Trust Estate” – All property, tangible or intangible, real or personal, together with all earnings, substitutions, and accretions, held at any time by the Trustee under this Agreement.
“Trustee” – The person or institution then serving as trustee under this Agreement, including any Co-Trustee or Successor Trustee.
III. OPERATIVE PROVISIONS
3.1 Creation and Name of Trust.
Settlor hereby transfers, assigns, and delivers to the Trustee the Initial Trust Estate to hold, manage, and distribute in accordance with this Agreement. The Trust shall be known as the [SETTLOR NAME] Revocable Living Trust and may be held and titled in that name.
3.2 Revocability and Amendment.
During Settlor’s lifetime and capacity, Settlor reserves the right at any time, by written instrument delivered to the Trustee, to revoke this Trust in whole or in part, or to amend any provision herein. Revocation shall divest the Trustee of all title to the revoked property, which shall thereupon revert to Settlor.
[// GUIDANCE: South Dakota permits oral revocation in limited circumstances; written revocation is strongly recommended for evidentiary certainty.]
3.3 Funding & Asset Transfer Procedures.
A. Additional Property. Settlor or any other person may at any time transfer additional assets to the Trust by assignment, deed, beneficiary designation, or other legal conveyance.
B. Real Property. Title to South Dakota real property shall be conveyed by duly executed warranty or quit-claim deed naming the Trustee in trust, recorded in the county where the property is located.
C. Tangible Personal Property. Assets not requiring title (e.g., household goods) shall be transferred by written assignment.
D. Beneficiary Designations. For life insurance, retirement accounts, and similar assets, Settlor shall execute beneficiary forms naming the Trustee of the [SETTLOR NAME] Revocable Living Trust, dated [EFFECTIVE DATE].
3.4 Management and Distributions During Settlor’s Lifetime.
A. Income and Principal. While Settlor is living and not incapacitated, Trustee shall distribute to or for the benefit of Settlor so much of the net income and principal of the Trust Estate as Settlor may request, in writing or orally.
B. Silent Trust Option. [OPTIONAL] Trustee shall withhold disclosure of trust terms to remainder Beneficiaries until Settlor’s death, as permitted by South Dakota law.
3.5 Incapacity of Settlor.
Upon a determination of Settlor’s Incapacity:
1. Trustee shall apply such income and principal as Trustee deems necessary for Settlor’s health, support, maintenance, and comfort, considering Settlor’s other resources known to Trustee.
2. Trustee may exercise any power on Settlor’s behalf that Settlor could exercise if competent, except the power to revoke or amend this Trust.
3.6 Disposition Upon Settlor’s Death.
Upon Settlor’s death, the Trust shall become irrevocable and shall be administered as follows:
A. Expenses and Taxes. Trustee shall pay Settlor’s legally enforceable debts, funeral expenses, and estate administration expenses, and shall file and pay applicable federal and state tax returns.
B. Specific Devises. Trustee shall distribute the following specific gifts free of trust:
1. [ITEM OR AMOUNT] to [BENEFICIARY NAME];
2. [ITEM OR AMOUNT] to [BENEFICIARY NAME].
C. Residual Trust. The remaining Trust Estate (“Residue”) shall be held, managed, and distributed per the dispositive plan set forth in Schedule B (Dispositive Plan) or, absent Schedule B, as follows:
1. [PERCENT]% to [PRIMARY BENEFICIARY];
2. [PERCENT]% to [CONTINGENT BENEFICIARY];
3. Any share for a beneficiary under age [AGE] shall be held in further trust until such beneficiary attains that age.
3.7 Spendthrift Protection.
To the maximum extent permitted by law, no Beneficiary (other than Settlor while the Trust is revocable) shall have the power to anticipate, assign, encumber, or transfer any interest in the Trust, and such interests shall not be subject to claims of creditors or to legal process.
3.8 Trust Protector [OPTIONAL].
Settlor appoints [TRUST PROTECTOR NAME] as Trust Protector with the powers set forth in Exhibit 1.
3.9 Directed Trustee [OPTIONAL].
Where investment responsibilities are allocated to an Investment Advisor pursuant to a separate Direction Letter, Trustee shall act in accordance with such directions and shall have no liability for so doing except in cases of willful misconduct.
3.10 Trustee Powers.
Except as limited herein, Trustee shall have all powers conferred by statute or principles of equity, including but not limited to: the power to invest and reinvest, operate businesses, lease, borrow, encumber, compromise claims, allocate receipts, and make tax elections.
3.11 Principal Place of Administration.
The Trust shall be administered in [COUNTY], South Dakota unless Trustee designates, in writing, another situs within South Dakota.
3.12 Successor Trustee Rules.
A. Order of Succession. If the office of Trustee becomes vacant, the next Successor Trustee shall be:
1. [FIRST SUCCESSOR TRUSTEE];
2. [SECOND SUCCESSOR TRUSTEE];
3. [CORPORATE TRUSTEE], a South Dakota chartered trust company.
B. Acceptance. A Successor Trustee shall accept the trusteeship by written instrument delivered to the Settlor (if living) or, if deceased, to the qualified Beneficiaries.
C. Powers; Continuity. Each Successor Trustee shall have all rights, powers, and immunities conferred upon the original Trustee.
3.13 Resignation & Removal.
A. Resignation. Trustee may resign by giving [30/60] days’ written notice to Settlor (if living) or to the qualified Beneficiaries.
B. Removal. Settlor, or after Settlor’s death a majority in interest of the adult Beneficiaries, may remove a Trustee at any time and appoint a Successor Trustee without court approval.
IV. REPRESENTATIONS & WARRANTIES
4.1 Settlor. Settlor represents and warrants that:
a. Settlor has full legal capacity to create this Trust and to transfer property to the Trustee;
b. All property transferred is free of undisclosed liens or encumbrances; and
c. Settlor’s execution of this Agreement does not violate any contract, court order, or legal obligation.
4.2 Trustee. Trustee represents and warrants that:
a. Trustee is not disqualified under any applicable law from serving as trustee;
b. Trustee has reviewed and understands the fiduciary duties prescribed by South Dakota law; and
c. Trustee will administer the Trust in good faith and in accordance with this Agreement.
4.3 Survival. The representations and warranties in this Article shall survive acceptance of the trusteeship and any transfers of property to the Trust.
V. COVENANTS & RESTRICTIONS
5.1 Affirmative Covenants of Trustee.
a. Maintain adequate records and provide annual accountings within [90] days after each Accounting Period.
b. File all required tax returns for the Trust.
c. Keep Trust assets segregated from Trustee’s own assets.
5.2 Negative Covenants.
a. Trustee shall not self-deal except as expressly permitted herein or by court order after full disclosure.
b. Trustee shall not commingle Trust funds with non-Trust funds.
5.3 Compliance. Trustee shall comply with all applicable federal and South Dakota statutes, regulations, and common law related to trusts, fiduciary investments, and beneficiary reporting.
5.4 Notice & Cure. If a Beneficiary reasonably believes Trustee has breached a fiduciary duty, such Beneficiary must give written notice specifying the alleged breach. Trustee shall have [30] days to cure before any legal action is commenced, unless irreparable harm would result.
VI. DEFAULT & REMEDIES
6.1 Events of Default.
a. Material breach of fiduciary duty.
b. Insolvency or bankruptcy of Trustee.
c. Persistent failure to provide accountings.
6.2 Remedies.
a. Removal of Trustee and appointment of Successor Trustee.
b. Surcharge against Trustee’s compensation.
c. Equitable relief, including specific performance and injunction.
d. Recovery of attorney fees and costs as provided in Section 6.3.
6.3 Attorney Fees & Costs.
In any dispute arising under this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees, costs, and expenses from the non-prevailing party, which may be charged against that party’s share of the Trust Estate.
VII. RISK ALLOCATION
7.1 Trustee Indemnification.
To the fullest extent permitted by law, the Trust Estate shall indemnify and hold the Trustee harmless from and against any and all claims, liabilities, and expenses, including attorney fees, incurred by reason of any act or omission within the scope of the trusteeship, except to the extent such claims result from Trustee’s willful misconduct or gross negligence.
7.2 Limitation of Liability.
Trustee’s liability shall in no event exceed the value of the Trust Estate, and no personal liability shall attach to Trustee for obligations arising under this Agreement.
7.3 Insurance.
Trustee may purchase fiduciary liability insurance, payable from the Trust Estate, to cover potential claims.
7.4 Force Majeure.
Trustee shall not be liable for failure to comply with the terms of this Agreement when such failure is due to events beyond Trustee’s reasonable control, including acts of God, war, terrorism, or changes in applicable law that materially affect administration.
VIII. DISPUTE RESOLUTION
8.1 Governing Law.
This Agreement and all disputes hereunder shall be governed by and construed in accordance with the laws of the State of South Dakota.
8.2 Forum Selection.
Any action concerning the construction or administration of this Trust shall be brought exclusively in the [NAME OF COUNTY] County Probate Court, State of South Dakota.
8.3 Optional Arbitration.
[OPTIONAL – Include or delete] Any dispute that the parties agree in writing to submit to arbitration shall be administered by [ARBITRATION ORGANIZATION] under its then-current rules. Judgment on the award may be entered in any court of competent jurisdiction.
8.4 Injunctive Relief.
Nothing in this Article shall prevent a party from seeking provisional or injunctive relief in the designated probate court to enforce the terms of this Trust.
[// GUIDANCE: Do not include a jury-trial waiver clause; probate matters in SD are generally tried without a jury.]
IX. GENERAL PROVISIONS
9.1 Amendment.
This Trust may be amended only as provided in Section 3.2. After Settlor’s death, no amendment shall be effective unless expressly authorized herein or by court order.
9.2 Waiver.
No waiver of a breach shall be effective unless in writing and shall not constitute a waiver of any subsequent breach.
9.3 Assignment.
Except as expressly permitted, no interest under this Trust may be voluntarily or involuntarily assigned.
9.4 Successors & Assigns.
All provisions herein shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors, and assigns.
9.5 Severability.
If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be reformed to the minimum extent necessary to achieve its intended purpose.
9.6 Entire Agreement.
This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior discussions and writings.
9.7 Counterparts; Electronic Signatures.
This Agreement may be executed in counterparts, each of which shall be deemed an original. Signatures transmitted electronically or by facsimile shall be deemed original signatures for all purposes.
X. EXECUTION BLOCK
IN WITNESS WHEREOF, Settlor and Trustee have executed this Revocable Living Trust Agreement as of the Effective Date.
SETTLOR
[SETTLOR FULL LEGAL NAME]
Date: _________
TRUSTEE
[INITIAL TRUSTEE FULL LEGAL NAME], Trustee
Date: _________
NOTARY ACKNOWLEDGMENT
State of South Dakota )
County of _____ ) SS
On this _ day of __, 20__, before me, the undersigned Notary Public, personally appeared [SETTLOR NAME] and [TRUSTEE NAME], known to me or satisfactorily proven to be the persons whose names are subscribed to the foregoing instrument, and acknowledged that they executed the same for the purposes therein contained.
Notary Public for South Dakota
My Commission Expires: ____
SCHEDULE A
INITIAL TRUST ESTATE
- Checking Account – [BANK NAME], Account No. [####], Approx. Balance $[AMOUNT]
- Brokerage Account – [BROKERAGE], Account No. [####], Approx. Balance $[AMOUNT]
- Real Property – [LEGAL DESCRIPTION], located at [ADDRESS], subject to recordation of deed to Trustee.
- Tangible Personal Property – All household furniture, furnishings, art, and personal effects presently located at [SETTLOR RESIDENCE ADDRESS].
[// GUIDANCE: Attach additional schedules or deeds as needed for each transferred asset.]
END OF DOCUMENT