What Is the Process of Contesting a Living Trust?


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A living trust (also called an “inter vivos” or “revocable” trust) is a document that allows a person to place his or her assets into a trust during life so that those assets can be distributed to designated beneficiaries by a chosen representative upon death.

Approximately 20 percent of Americans have living trusts. Living trusts have some benefits compared to wills, such as helping avoid probate, potentially saving money and preserving privacy. However, the terms of living trusts can be contested or challenged in state court. What is the process of contesting a living trust, and how can a beneficiary fight back when a living trust is contested?

When
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someone decides to contest a trust document, he or she must file a lawsuit in a state probate court. This person must have standing to sue, meaning that he or she has some interest in the outcome of the case. There are a variety of reasons a person might contest a living trust. One of the most common involves the mental state of the trust grantor. No matter where you are in the United States, trust grantors must be mentally competent at the time of the creation of trust documents. Sometimes, people will contest living trusts by claiming that the grantor was suffering from some sort of mental illness or otherwise debilitating mental state at the time of the creation of the document, meaning that the document is invalid. These individuals might look to medical records or expert testimony to prove that the grantor was not mentally sound at the time of a trust’s creation.

Another common reason people may contest a living trust involves undue influence over the trust grantor. If the grantor is subjected to pressures by individuals capable of exerting undue influence over his or her decisions, others who have interest in the outcome of the case could bring a lawsuit to contest the living trust. In these cases, an individual may argue that the grantor created a trust or amended the conditions of a trust in a way that is contrary to his or her actual wishes as a result of pressure from someone else. Often, a caregiver is responsible for undue influence, although other individuals may also be responsible.

If an individual is able to convince a probate court to invalidate the terms of a living trust or a trust amendment, then the assets are distributed according to the prior will or trust, if one exists. If there is no other will or trust, then the state must distribute the property and assets contained within the trust according to intestate succession laws, which provide a general framework on how to distribute a decedent’s estate in the absence of a will.

ABOUT THE AUTHOR: Charles Triay
Attorney Charles Triay, the founder of Triay Law Office, has over 30 years of experience in handling contested probate litigation. You can reach our law firm at (510) 463-3165 to explore your legal options if you believe you are dealing with a defective will or trust.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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