We’ve all heard of Will contests. Once a Will is admitted to Probate, a notice is published that lets the public know the Probate process is underway, and disgruntled heirs or beneficiaries who are unhappy with their share of a loved one’s estate have a chance to join in the already-in-progress legal proceeding to voice their discontent. Of course, there are rules that must be followed, and specific facts that have to be proved in order to win a Will contest, but filing a Will contest – and disrupting the Probate process – is not terribly difficult.
But what about contesting a Living Trust? It’s slightly harder than contesting a Will. First, a Trust does not go through Probate, so the process of administering a Trust is more private, with no public notice published. This means that only those individuals who are directly involved with the Trust – including the Trustee, the Beneficiaries, and any professionals, like the attorney, appraisers and financial advisors who assist with the Trust administration – receive notice that the Trust is being administered.
Second, if an unhappy heir or beneficiary decides to contest your Trust, he or she would have to initiate a lawsuit (a little more daunting than just joining in a Probate proceeding that’s already in progress), and prove one of two things:
- Undue Influence: This requires that the person contesting your Trust prove that one or more of your beneficiaries had such strong sway over you that they forced or convinced you, against your actual wishes, to leave all or part of your estate to them, instead of to the loved ones you truly wanted to receive your property.
- Fraud: This requires that the person contesting your Trust prove that you signed your Trust thinking that it was actually another document, like a deed or a power of attorney.
Lawsuits challenging Trusts are less common than Will contests, but they do happen. Your estate planning attorney can suggest ways to reduce the likelihood that your Trust will be challenged.