Although a Last Will and Testament is usually the foundation of a comprehensive estate plan, most plans include a variety of documents in addition to a Will. One of the more common additions to a thorough estate plan is a trust. A question that frequently comes up –typically from a beneficiary – is “Can you contest a trust?” The simple answer is that yes, a trust in Houston Texas can be contested.
A trust is a legal entity that requires four elements for creation — a trustor, a trustee, a beneficiary, and assets. The trustor is the individual who creates the trust. The trustee is the person, or entity, that administers the trust and manages the trust assets. The beneficiary is who will receive the benefits of the trust. Assets must also be transferred into the trust to fund the trust. A trust may be a testamentary or inter vivos trust. A testamentary trust only takes effect when the trustor dies while an inter vivos, or living, trust takes effect when all the elements necessary for the trust creation are present. Finally, a trust in Houston Texas can be revocable or irrevocable.
Just as a Will can be contested, so can a trust. A true contest must claim that the trust is not valid, meaning that the trustor was under duress or not of sound mind when it was created, or that fraud was used in the creation of the trust. What occurs more often than a true trust contest is that a beneficiary petitions a court to modify the terms of a trust or terminate the trust altogether.
Even an irrevocable trust can be modified or terminated under certain circumstances; however, it typically requires a court order. For example, if the terms of the trust are illegal or unconscionable, or if the trust purpose can no longer be carried out then a court may terminate an irrevocable trust. Likewise, if a term in a trust makes administering the trust extremely difficult, or the term no longer has meaning, a court may allow a modification of the term.
Contesting, modifying, or terminating a trust is often more complicated and harder to accomplish than contesting a Last Will and Testament. For this reason, if you are a beneficiary of a trust and wish to purse a contest, modification, or termination of the trust you should speak to an experienced estate planning attorney to determine what your legal options are.
Stephen A. Mendel, Estate Planning Attorney
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