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.
This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.
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