One of the reasons why you may want to create a trust instead of a will is because wills can be easily contested. While the contesting party may not always get the result they want, contesting a will does leave your legitimate heirs stuck in court for quite some time. However, while a living trust does certainly have a number of benefits to it, it can actually be contested in court as well.
Why Would Someone Contest a Living Trust?
People contest living trusts for many of the same reasons they contest wills. They don’t believe they have been given the correct inheritance, or someone who was left out of the living trust may believe they should have received something. Someone may believe you created your living trust under duress or that your mental state was unstable at the time. If the trust document wasn’t written correctly or filed correctly, it also leaves the trust open to being contested.
How Is It Contested?
A trust is created via a trust document, an official piece of paper that outlines all of the rules of the trust. This document should be created by your lawyer, and it will need to have the appropriate signatures on it. To contest this document, a party would go to probate court and file the appropriate paperwork.
What Happens if the Court Agrees with the Contesting Party?
If the contesting party does convince the court that you were not mentally capable, were coerced, or any other valid reason to invalidate the trust, the trust will be invalidated. If you have a will or a prior trust document, the court will then examine it to determine if it’s valid. If it is, they will distribute your assets according to that document. If there is no previous document, they will follow succession laws to distribute your estate.
For example, say you had a trust document that gives your four children 25% each but later changed it so that one child got nothing and three got 33%. If the child who received nothing contests the trust and can prove that one of the other children convinced you to cut them out, the updated document would be invalidated. Each of the four children would then receive 25% as outlined in the first document.
If you’re going to set up a living trust, you want to have a professional on your side. The legal experts at Michael F. Kanzer & Associates are here to help create a trust that follows your wishes and will hold up against any contesting action. Contact us today to make an appointment.