When it comes to dividing an individual’s assets at the end of one’s life, a person can use either a will or a trust. While trusts and wills are similar in certain ways, there are a few major differences between the two.
First, when a will is administered through probate, the distribution of assets must be administered by the court. A trust, on the other hand, can be administered by a third-party individual (a “trustee”). Because trust administration does not have to go through probate court, beneficiaries of trusts usually gain access to their assets more quickly than beneficiaries of wills.
Additionally, unlike in the case of a will, a trust can be executed while the “grantor” of the trust (i.e., he to whom the trust belongs) is still alive. Trusts can also provide certain stipulations for how the beneficiaries are to spend their inherited assets.
To use an example many people would be familiar with, “trust funds” are often set up by grantors to be given to beneficiaries at a certain point in their lives (such as on the beneficiary’s 21st birthday), provided that the money in the trust fund is spent in a certain way (for instance, to pay for college).
Aside from these differences, trusts are actually very similar to wills in many important areas—including content, purpose, and administration. And as with a will, sometimes disputes can arise regarding the content or administration of a trust. If you’re considering contesting a trust, it’s important to speak to a qualified and knowledgeable local probate lawyer who will be able to guide you through the process.
Contesting a Trust: What You Need to Know
First off, it’s important to know that only a beneficiary of the contested trust, or someone who would have inherited something from the deceased had a trust not been left, can contest a trust.
However, before you contest a trust, it’s important to note that many trusts include so-called “no contest” clauses, which state essentially that any individual who tries to legally contest the trust and loses will not inherit at all. Therefore, there can be a great deal at stake when a person is deciding whether or not to contest a trust.
Still, there are certainly times when contesting a trust is perfectly appropriate.
In many ways, the steps that one must take in contesting a trust are similar to the steps involved in contesting a will. As with wills, there are a number of reasons why a trust could be contested. These include:
- Improper formation of the trust (e.g., failure to acquire the proper signatures, witnesses, or other legal requirements at the time the trust was drawn up)
- “Lack of capacity” (meaning that the grantor was not mentally capable at the time that the document was created)
- The set distribution of assets is in violation of Florida Statutes
- Unclear or uncertain interpretation of the document
- The trust needs to be or has been reformed or modified
- If the trustee breaches his or her fiduciary duty
- “Undue influence” (meaning that the grantor was pressured—probably by self-serving third parties—into working certain provisions into the trust that the grantor would not have included under normal circumstances)
Of these, the most common reasons for contesting a will are: lack of capacity, undue influence by another, fraud, the existence of a more recent trust, or the improper signing or witnessing of the trust. Each of these points carries a number of additional implications, all of which are inherently complicated and nuanced.
If you are dealing with a trust that you feel meets any of the above criteria, you may be in a position to contest the trust. However, even if your case for contesting is sound, legal issues dealing with trusts can be extremely difficult to navigate, especially considering the “no contest” clauses that trusts often include.
How to Contest a Trust
If you decide that you’re dealing with a trust that is unfair, take the next step and contact a knowledgeable local lawyer who will be able to walk you through the process of contesting the trust.
Contesting a trust can be exhausting and emotionally trying not just on you, but also on your family and all involved parties as well. Make the process as painless as possible by speaking with someone who knows the law and who is familiar with these sorts of cases. Contact Wintter & Associates today to discuss your options.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 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 for 2011 and 2012 in Estate and Trust Litigation.