The 2022 South Dakota legislative session ended March 28, 2022, with 245 bills passed and signed by the Governor. All told, there were 340 House Bills, 14 House concurrent resolutions, three House Joint resolutions, five House resolutions, 213 Senate Bills, 8 Senate Concurrent resolutions, three Senate joint resolutions, and two Senate resolutions addressed by the legislative bodies. This was an extraordinary number for the 70 Representatives and 35 Senators to consider during a 40-day legislative session. With so much work to be done, and with so much money in the State’s budget to spend, it is easy to overlook some practical bills passed which will affect the financial institution industry most every day. In South Dakota, unless there is an emergency clause, the legislation takes effect on July 1 following the session, so the changes discussed below will take effect July 1, 2022.
One of the bills was SB 47 which was sponsored by the Division of Banking in an effort to streamline the requirements for the approximately 159 licensed money transmitters licensed in South Dakota to bring the laws in South Dakota in conformance with many other states and make it easier for national licensees who need to get state licenses in many states. A tiered solvency structure and virtual currency provision were added to protect consumers.
HB 1115 provides for a transfer of real property to the successor to a decedent by affidavit. HB 1085 expands the eligibility for a small estate probate. Currently, to transfer real property except for joint transfers to a spouse, a court probate procedure is required, unless the estate including all real and personal property is very small ($50,000 or less). Even small estates when combining real and personal property usually exceed $50,000. The bills together expand the small estate affidavit to $100,000 value of the entire estate, and allow the transfer of real estate by affidavit to any successor by will, intestate succession, or homestead or family allowance, when the real estate is $50,000 or less. The successor is responsible for applying the property to all liens on the property. There are several requirements for the affidavits, and a number of protections for creditors. All in all the procedures may in certain circumstances save those small estates from having to take additional and sometimes costly administrative steps to settle the estates of decedents who died without much property.
As a result of COVID and many folks staying home (See also, Remote Work Considerations for South Dakota Banks), the legislature has, in past years, addressed remote notarization of some documents. This year, SB 107 added the ability for witnessing of the signing of wills, declarations, powers of attorney, pre-need cremation authorizations, and anatomical gift authorizations or refusals by means of video communication technology. Such documents are required to be witnessed to be valid in South Dakota, and this bill gives the ability to remotely witness such documents.
HB 1025 added June 19 (Juneteenth) as a state holiday. Interestingly, since there is no emergency clause, the first year June 19 will be recognized as a state holiday (absent other administrative action) is June 19, 2023, since the bill does not take effect until July 1, 2022.
Finally, in recognition of the increasing efforts at cybercrime and malware, HB 1087 added public or private cyber security plans and discussions of them to the list of items which are not public records and which may be the subject of executive or closed meetings. While this generally affects public bodies and their transparency only, many regulators require financial institutions to submit such plans, policies, and procedures to the regulator. This reaffirms that such materials are clearly confidential and not subject to public disclosure.
Davenport Evans stands ready to help our banking clients with questions. Contact a lawyer at 605-336-2880, [email protected], or visit www.dehs.com.