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

11. EXTINGUISHMENT OF CREDITORS’ CLAIMS (“FRAUDULENT CONVEYANCE PERIOD” OR
STATUTE OF LIMITATIONS)
The period of time after which a cause of action or claim for relief with respect to a transfer of a
grantor’s assets to a DAPT is extinguished (i.e., creditor will not be able to reach the assets).
a. States:
18 Months: Ohio 223
2 Years: South Dakota, 224 Nevada, 225 Hawaii, 226 and Utah (120 days with mail or
publication option) 227
4 Years: Alaska, 228 Delaware, 229 and all other self-settled DAPT states 230
5 Years: Virginia 231
Please Note: Generally, all one year discovery except South Dakota, Nevada and Ohio:
Both 6 months
b. South Dakota
Under South Dakota statute, 232 if the creditor becomes a creditor of the settlor before the
settlor transfers the assets to the trust, the action must be brought within the later of:
1. 2 years after the transfer is made; or
2. 6 months after the transfer is or reasonably could have been discovered by
the creditor.
a. If the time period under (2) (the 6 month period) is applicable, the
creditor must either:
i. Demonstrate that the creditor asserted a specific claim
against the settlor before the transfer occurred; or
ii. Files another action, within 2 years after the transfer to the
trust, that asserts a claim based upon an act or omission of
the settlor that occurred before the transfer.
If not brought within this period, the claim is extinguished.
If the creditor becomes a creditor of the settlor after the settlor transfers the assets to the
trust, the action must be brought within 2 years after the transfer is made.
If not brought within this period, the claim is extinguished.
223 OHIO REV. CODE ANN. § 5816.07.
224 SOUTH DAKOTA CODIFIED LAWS § 55-16-10.
225 NEV. REV. STAT. § 166.170.
226 HAW. REV. STAT. §§ 554G-8.
227 UTAH CODE ANN. § 25-6-14.
228 ALASKA STAT. § 34.40.110.
229 DEL. CODE ANN. tit. 12, § 3572.
230 See N.H. REV. STAT. ANN. § 545-A:9; MO. REV. STAT. § 428.049; OKLA. STAT. tit. 24, § 121; R.I. GEN. LAWS §
18-9.2-4; TENN. CODE ANN. § 35-16-104; WYO. STAT. ANN. § 34-14-210.
231 VA. CODE ANN. § 64.2-745.1.
232 SOUTH DAKOTA CODIFIED LAWS § 55-16-10.
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