Monday, May 1, 2017
How a Living Trust May Be Able to Help when it Comes to Court Challenges to Your Plan
Summary: Some types of planning have benefits that are absolute. If you properly set up, properly execute and properly fund a living trust, you can receive the benefit of probate avoidance. Other objectives, like avoiding a court challenge to your plan after your death, cannot be guaranteed, even with the best of planning. Just because it isn’t guaranteed doesn’t mean that it isn’t worth doing. With careful planning, you can potentially reduce greatly the risk of a successful challenge that will disrupt your plan and possibly impair or block the completion of your objectives.
A well-worn old proverb wisely opines that you cannot always prevent trouble or misery from coming in, but “you don’t have to give it a chair to sit on.” In other words, while we cannot always prevent bad things from happening, we should not leave ourselves in a position where it is easy for trouble to take hold… or get worse. Just because planning may not be able to give you 100% protection from certain potential miseries, it is still extremely beneficial and necessary in reducing your odds of some troubles.
A properly drafted and full funded revocable trust will allow you to avoid the potential delays and costs associated with probate administration. It cannot, however, provide you with 100% ironclad protection against legal challenges to your plan. If you are in a situation where you believe your plan has a heightened risk of legal challenge by someone in your life, you definitely should still plan and consider planning with a trust. While a trust won’t immunize your plan from legal action, it will reduce your risks of this type of trouble.
For one thing, you are generally not required by law to tell anyone what’s in your trust, or even that you’ve created it. Certainly, there are important reasons why you would want to tell certain people about your trust. As an example, if you’ve named your granddaughter as your successor trustee, telling her promptly will probably help her prepare to carry out her duties more efficiently and successfully. However, if you have a daughter whom you’ve decided to leave only a small sum (or nothing at all,) there is no requirement that you tell her about your trust.
Additionally, trusts can help when it comes to legal challenges because, in most states, they ar generally harder to challenge successfully than wills. That does not mean that your living trust cannot be challenged. The legal system allows a wide array of people to file lawsuits for many reasons. However, in terms of mounting a winning challenge and thwarting you goals, a challenger probably has better odds in a will contest than a trust challenge in most places.
The law of most states also creates certain limitations on launching a trust challenge. If your state has adopted a version of the Uniform Trust Code, then your potential trust challenger has only a limited time to file their action. Under this standard, if your challenger is notified about the trust upon your death and waits more than 90 days, or waits more than 2 years after your death (whichever comes first,) then the law bars them from even pursuing this contest.
Each plan and each family is unique in its complications and needs. Your estate planning attorney can help you identify your potential hurdles and pitfalls, and identify for you what tools, including living trusts, can help you carry out your objectives.
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