There is a newer version of the South Dakota Codified Laws
2006 South Dakota Code - 55-16-16 — Avoidance of qualified disposition.
55-16-16. Avoidance of qualified disposition. A qualified disposition is avoided only to the extent necessary to satisfy the transferor's debt to the creditor at whose instance the disposition had been avoided, together with such costs, including attorney's fees, as the court may allow. If any qualified disposition is avoided as provided in this section, then:
(1) If the court is satisfied that a
qualified trustee has not acted in bad faith in accepting or
administering the property that is the subject of the qualified
disposition:
(a) Such qualified trustee has a first and
paramount lien against the property that is the subject of the
qualified disposition in an amount equal to the entire cost,
including attorney's fees, properly incurred by such qualified
trustee in the defense of the action or proceedings to avoid the
qualified disposition. It is presumed that such qualified trustee
did not act in bad faith merely by accepting such property;
and
(b) The qualified disposition is avoided
subject to the proper fees, costs, preexisting rights, claims, and
interests of such qualified trustee, and of any predecessor
qualified trustee that has not acted in bad faith; and
(2) If the court is satisfied that a
beneficiary of a trust has not acted in bad faith, the avoidance of
the qualified disposition is subject to the right of such
beneficiary to retain any distribution made upon the exercise of a
trust power or discretion vested in the qualified trustee or
qualified trustees of such trust, which power or discretion was
properly exercised prior to the creditor's commencement of an
action to avoid the qualified disposition. It is presumed that the
beneficiary, including a beneficiary who is also a transferor of
the trust, did not act in bad faith merely by creating the trust or
by accepting a distribution made in accordance with the terms of
the trust.
Source: SL 2005, ch 261, § 16.
Source: SL 2005, ch 261, § 16.
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