Probate & Trust Law Section Conference Manual ... - Minnesota CLE

iii. Statutes
c. South Dakota
Procedures to request sealing records: 196
1. The rules provide some factors a court may consider when ruling to seal
a part of the court file which are based upon those in NBC Subsidiary.
2. The factors set out in Rule 2.550:
“The court may order that a record be filed under seal only if it expressly
finds facts that establish:
(1) There exists an overriding interest that overcomes the right
of public access to the record;
(2) The overriding interest supports sealing the record;
(3) A substantial probability exists that the overriding interest
will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exist to achieve the overriding
interest.” 197
South Dakota Codified Laws section 21-22-28 allows a petition to have court records
sealed upon the request of the settlor, trustee, or any beneficiary. In South Dakota, by
statute, it is possible to protect the privacy of those persons who have established a court
supervised trust or non-court supervised trust with regard to any court proceeding
concerning the administration of a trust:
d. Delaware
The privacy of those who have established a court trust or other trust shall be
protected in any court proceeding concerning the trust if the acting trustee, the
trustor (if living), or any beneficiary so petition the court. Upon the filing of
such a petition, the instrument on which the trust is based, inventory, statement
filed by any trustee, annual verified report of trustee, final report of trustee, and
all petitions relevant to trust administration and all court orders thereon shall be
sealed upon filing and may not be made a part of the public record of the
proceeding, but shall be available to the court, to the trustor, to the trustee, to
any beneficiary, to their attorneys, and to such other interested persons as the
court may order upon a showing of the need. 198
Many advisors have stated that in other states, such as Delaware, most trust agreements
do not need to be filed or recorded, and if they are subject to litigation, the courts can be
petitioned and have been willing to place the court order under seal. The seal in the
Delaware Chancery Court, which handles probate matters, generally expires three years
after the disposition of the case. 199
196 CAL. RULES OF COURT, Rules 2.550 and 2.551.
197 CAL. RULES OF COURT, Rule 2.550.
198 SOUTH DAKOTA CODIFIED LAWS § 21-22-28.
DEL. CH. CT. R. 5.1.
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