A document known as a living trust is something that allows you to place your assets into a trust during your life so that they can be given to the designated beneficiaries upon your death. Every day, more and more Americans are choosing living trusts over wills. This is due to the different benefits of living trusts. Some of them are saving money, preserving privacy as well as helping avoid probate. However, it can happen that the terms of the living trust are challenged or contested in state court. Many people are not aware of this process, nor what happens during it. If you were wondering what is the process of contesting a living trust, then this article is for you.
How does it start?
To contest a living trust, one must first file a lawsuit in probate court in the state that has jurisdiction. Depending on the type of lawsuit, this can be a different state from the one in which the trust was executed. But, before you start anything, you should, of course, talk to a lawyer. As the Arizona law firm Brown & Hobkirk explains, you can even get a free consultation. Moreover, an experienced lawyer will be able to help you prepare all the necessary documents prior to filing a lawsuit. These usually include a complaint or a petition to contest a trust. It is important that you pay attention to this step as the documents that are required vary from state to state.
Reasons for contesting
There are different reasons that allow you to contest a living trust. Some of them are fraud or undue influence, capacity, violating provisions as well as having multiple trusts.
If someone places undue influence on a person who is creating their living trust, they actually violate the law. So, in situations like this, it is possible to contest the validity of the trust citing undue influence or fraud. When it comes to contesting a trust for a lack of capacity, it is possible to do so if the person creating the living trust has dementia or a substance abuse problem. Moreover, if the witnesses who signed the truest are also named in the document, the living trust document is invalid and can be contested. And lastly, if a person has more than one trust, contesting it is possible as well. These kinds of situations usually happen if a person moves to a new state, or if they try to update their estate plan by drafting a whole new document.
When must the trust contest be commenced?
After a trust beneficiary receives a notice about their inheritance from the trust, the living trust contest has to be commenced within a period of 120 days. These notices are usually received in the form of a letter. This letter states that the trustee is providing notice regarded to the trust administration. So, if you believe that any of the reasons mentioned above have affected your right to inheritance, it is important to act fast. That is, make sure that you consult with an attorney soon after death.
As in any other type of lawsuit, the outcomes of contesting a living trust can vary. If the court decides that a living trust is valid, the trustee that manages the trust will continue to distribute the assets in the normal way. On the other hand, the court can also rule the trust to be nonvalid in part or as a whole. In cases like that, the aggrieved party is usually rewarded with particular assets from the trust. Another possible outcome is that beneficiaries research a settlement with the party. Of course, the process does not have to stop after the first lawsuit, as further lawsuits can occur as a result of an invalid trust.
How legal representation helps
As previously mentioned, when contesting a living trust, hiring an attorney is a good idea. However, many people choose to do this on their own, as they believe they have a good enough justification to do so. Even if that is the case, winning a lawsuit will not be so easy. But, when you hire a lawyer, they can help you develop the best strategy possible for your case.
They might advise you to file a lawsuit as soon as possible and be the first one to get to the courthouse. On the other hand, if it is better for your case, they might recommend sending a letter to the lawyer who is representing the party or parties you are disputing with. This step can allow you to get more information. In any case, they will know what is best for your case in any circumstances. And of course, they will know all the laws that are implemented in the state you are living in. This can be vital to your lawsuit, as rules and regulations can vary a lot from state to state.
Even though contesting a living trust is not the most pleasant process, sometimes it has to be done. If you wanted to know more about it, hopefully, this article has helped you!