Before we address the question that serves as the title this blog post, we should explain why you may want to consider a living trust as the core document in your estate plan.
This type of trust is revocable, so if you ever change your mind, you can dissolve the trust and take back direct personal possession of the property. It is unlikely that you will ever want to do so since you are using it as an estate planning device, but this can be comforting for some people.
The ongoing control does not stop there, because you can act as the trustee and the beneficiary while you are alive and well. Because of this arrangement, you would be able to control the actions of the trust in every way, and you could accept distributions from the trust.
In the trust declaration, you would name a trustee to succeed you, and your heirs would be the successor beneficiaries. You could empower the successor trustee to administer the trust if you ever become incapacitated, or you could name a different disability trustee.
The ability to prepare for possible incapacity is one of the benefits, and it is important. Though it is not a very pleasant subject to consider, a very significant percentage of elders do in fact become unable to make sound decisions at some point in time.
One of the major advantages of a living trust is the fact that the successor trustee can distribute assets outside of probate after your death. When a will is used, it would be admitted to probate, and the court would be involved.
This process will typically take close to a year to run its course, and assets cannot be distributed to the heirs until the court closes the estate. The time consumption is one of the drawbacks, but there are others.
Another major plus that goes along with the creation of a living trust is the streamlining of the estate administration process. All or most of the assets that comprise the estate would be easily identifiable, and this would simplify the tasks that must be undertaken by the successor trustee.
Living Trust Challenges
Now that we have provided the necessary background information, we can get to the point. If an interested party wants to challenge the terms of a living trust, there is no readily available avenue. On the other hand, a will can be challenged during the probate process.
This being stated, a living trust can be contested, but the party who has a problem with the terms would have to file a lawsuit. This is a bit complicated, and it is expensive.
If you establish a living trust and you know that someone who is named as the beneficiary will not be happy with the terms, you could include a no-contest clause. This would trigger the complete disinheritance of anyone who is named as a beneficiary who challenges the terms of the trust.
Learn More About Living Trusts
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Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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