Estate Planning | Making a Difference One Family at a Time

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Westport trust attorneysWhile a Last Will and Testament remains the most commonly used estate planning tool, a trust is not far behind in terms of popularity. Trusts are frequently included in a comprehensive estate plan for a wide variety of reasons, including the fact that a trust can help your estate avoid probate. Can a trust help avoid challenges to your estate though? The Westport trust attorneys at Nirenstein, Horowitz & Associates, P.C. discuss the possibility of contesting a trust.

Trust Basics

A trust is a separate legal entity that owns and holds property for the benefit of one or more beneficiaries. A trust is created by a Settlor, also referred to as a Grantor, Trustor, or Maker, who transfers property to a Trustee appointed by the Settlor. The Trustee holds that property for the trust’s beneficiaries.  All trusts fit into one of two categories – testamentary or living (inter vivos) trusts. Testamentary trusts are typically activated by a provision in the Settlor’s Last Will and Testament and, therefore, do not become active during the lifetime of the Settlor. Conversely, a living trust, as the name implies, does activate during the Settlor’s lifetime.  Living trusts can be further sub-divided into revocable and irrevocable living trusts. The type of trust you create will depend on the purpose of the trust among other factors.

Contesting a Trust

You are likely familiar with the concept of a Will contest wherein someone (usually a beneficiary or heir) challenges the validity of a decedent’s Will that has been submitted for probate. A Will contest can be costly – both in terms of time and money. The desire to avoid both probate and litigation is one of many reasons people often choose to rely predominantly on a trust to distribute their estate. Can that trust be contested though? The answer is “yes,” a trust can be contested; however, it is typically a more complicated process than contesting a Will.

Contesting a trust works essentially the same as contesting a Will. As with a Will contest, you cannot challenge a trust simply because you are not happy with the terms of the trust agreement. In other words, being left out of a trust is not a valid legal reason to challenge the trust. Instead, you must use one of the legal reasons allowable under state law which governs most issues related to wills, trusts, and estates. For example, you could challenge the Settlors capacity to create the trust. In this setting, capacity refers to the mental state necessary to establish the trust. You might also contest a trust by claiming that the Settlor was subject to “undue influence” at the time the trust agreement was executed. Improper execution and/or technical flaws with the trust agreement itself can also serve as the basis for a challenge to a trust.

To contest a trust you will also have to have “standing.” Standing is the legal term used to refer to someone who has the legal right to initiate a legal proceeding. In the case of a Will or trust contest, a person must usually be a beneficiary, heir, previous beneficiary, or sometimes a creditor in order to have the standing required to proceed.

If you  have standing and you believe you have a valid legal reason to contest a trust, a trust contest can be initiated by filing the necessary legal documents with the appropriate court.

Preventing a Trust Contest – No Contest Clauses

If you are contemplating the use of a trust to distribute your estate and you want to discourage challenges to that trust, you may wish to discuss the addition of a “no contest” clause with your trust attorney. A “no contest” clause effectively states that if a beneficiary unsuccessfully challenges a trust (or Will) that they forfeit the inheritance designated for them in the trust. Of course, you must gift something to that person in your trust for a no contest clause to work as intended. For example, imagine that your estate is worth $1 million and you are concerned that a sibling might challenge your trust. To discourage that challenge you could include a provision that gifts $50,000 to your sibling and add a no contest clause.  Your sibling forfeits that $50,000 gift if he/she contest the trust unsuccessfully. State laws also govern the enforceability of no contest clauses to be sure to discuss your desire to add one with your trust attorney.

Contact Westport Trust Attorneys

For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding the creation of a trust or about contesting a trust, contact the experienced Westport trust attorneys at Nirenstein, Horowitz & Associates, P.C. by calling (860) 548-1000 to schedule an appointment.

Barry D. Horowitz, Estate Planning Attorney
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