We’ve talked in previous blog posts about will contests: when a will can be contested, the process for how it might change the will, and how beneficiaries will be affected. But as we’ve mentioned in other posts, wills are not the only documents that are involved in estate planning.
Many people choose to put some of their assets in trusts, which can skip probate and are easily transferred to a trustee after the person has passed away. The trustee to a trust is like a personal representative to a will. There are certain duties and responsibilities that a trustee has to perform to administer the trust after a person’s death.
But just because trusts do not go through probate does not mean they are safe from being reviewed or contested. Living trusts, revocable or irrevocable, can be contested both in and out of court.
Reasons to Contest a Trust
The reasons for contesting a trust are very similar to the reasons for contesting a will. They include:
- Defective Document: The trust was not executed under the laws and policies of the state of Florida.
- Undue Influence Claim: The person writing the trust may have not made the trust freely. Instead, the trust was made under the coercion, force, or threat of another person.
- Lack of Capacity: The person writing the trust may have not had the mental capacity to do so.
- Breach of Fiduciary Duty: Trust contests do not just challenge to modify the content of the trust. The behavior or validity of the trustees (parties responsible for overseeing the trust) may also call for a will contest. If the trustee is not fulfilling their duties, the trust may be contested and the trustee may face penalties, including removal as trustee.
- Removal of Trustee: There may be other reasons why a trustee may be removed from a trust, i.e. the trustee has died or does not have the mental capacity to administer the trust.
- Lack of Accounting: If an accounting has not been provided to beneficiaries, it may be requested from the court. Beneficiaries may also object the accounting.
What Happens Once a Trust Is Contested?
If the parties involved want to settle outside of court, they can attempt to come to a nonjudicial settlement agreement. Any of the above issues can be addressed by a nonjudicial settlement agreement, but either party is able to reject the agreement and instead take the matter to court.
If the matter must be settled in court, an individual can file a lawsuit in the Florida State probate court. The individual filing will be responsible for providing the evidence and documents required for the probate court to assess the trust.
If changes to the trust are justified, any of the following may occur:
- If the costs of administration cannot be justified by the trust property (and the trust property contains less than $50,000), the trust may be terminated.
- The trust can be reformed to follow Florida law, to reflect the original intent of the person writing the trust, or to clear up anything that was ambiguously stated by the trust.
- A trustee can be removed. If necessary, action can be taken against the trustee to compensate for losses while the trustee was breaching fiduciary duties.
For more information on how to alter, contest, or terminate estate planning documents, contact a Florida probate lawyer today.
About the Author:
Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.