Setting up a trust is a common estate planning tool for trying to avoid extended probate proceedings. However, a trust can present its own set of problems for beneficiaries and other folks who might have interests in estates. Likewise, a trust may be so fatally flawed as to undermine its reasons for existing.
If you're convinced that a trust should be challenged using the probate process, it's a good idea to understand what your possible options might be. No probate attorney can guarantee you'll prevail in court, but they often use these three arguments to ask a judge to reconsider the status of a trust.
The Trust's Purpose Stopped Existing
Estate grantors often set up trusts to serve narrowly defined purposes. For example, someone worried about an adult dependant in their care might arrange a trust to provide for the dependent if the grantor passes. What happens if the dependent passes, though? Ideally, the grantor would change their will and the trust. However, they might overlook the need for changes or not have time to implement them.
The remedy is usually to terminate the trust. A beneficiary of the estate will have to petition the court for the termination, and then a probate attorney will explain how the trust no longer serves its appointed purpose.
Something Is Wrong with the Establishment of the Trust
A will may establish a trust upon the grantor's passing. This can create some problems if the language establishing the trust is flawed. For example, it might be ambiguous about the purpose of the trust. It might also fail to clarify who the beneficiaries are. This creates a situation where the trust might not come into being or beneficiaries might question it.
Unsound Mind or Undue Influence
This often dovetails with the language in a will that establishes a trust. If the grantor was of unsound mind at the time they signed off on the language, it would potentially nullify the existence of the trust. Notably, this isn't dissimilar from simply contesting the will because the grantor was of unsound money, except there's an additional step involving the proposed termination of the trust.
Undue influence is a similar argument. The idea here is that someone wrongfully influenced the grantor to change the will and establish the trust. For example, a new spouse entered the picture weeks before the grantor's passing. If the marriage led to massive changes in the will, that would open questions if it established any trusts.Share