Challenging a Will vs. Challenging a Trust in Probate Court

Although when it comes to estate planning people mostly speak about wills, trusts also are invaluable ways of preserving property and leaving it to loved ones down the road. But just as wills can be challenged in court, so too can trusts. But there are some small differences between challenging wills and challenging trusts.

Grounds to Challenge

If you are someone seeking to challenge the validity of a will or a trust, you may have more leeway to challenge a trust than a will.

To some extent, challenging both is the same: you can challenge them for things like undue influence, or lack of mental capacity, or improper execution of the actual will or trust document.

But trusts also provide the challenger, the ability to contest the actions and decisions of the trustee. The trustee has a fiduciary duty that is owed to the beneficiaries of the trust, and that includes the requirement to ensure that trust assets are invested properly, that they are used as dictated by the trust, to protect trust assets from outside claims, or simply, to make sure that the trustee herself or himself, is not obtaining any personal gain from the trust (self-dealing).

Standing: Who Can Challenge

Who can challenge a trust, is slightly different than who can challenge a will. To challenge a trust, the challenger must show that they have an interest in the trust, or that they would have had an interest in the trust. You can’t just disagree with what the trust says or does–you must derive some kind of benefit, from challenging or invalidating the trust.

Timing and When a Trust Can be Challenged

Trusts can be revocable or irrevocable–terms or concepts that don’t exist when it comes to wills. When it comes to trusts, you cannot challenge a trust that remains revocable. Most revocable trusts become irrevocable upon death, at which point, the trust can be challenged.

There are trusts that are irrevocable immediately, as soon as they are made. In those cases, trusts may be able to be challenged immediately.

Additionally, will challenges must be made, generally in the probate case that is administering the will. But trust challenges–particularly, challenges to the trustee, for violating the terms of the trust, mismanagement, or breaches of fiduciary duty–can be made at any time after the death of the trust settlor (although that isn’t necessarily challenging the trust itself, as much as it is, challenging the competency of, and potentially removing, the trustee).

Tougher to Challenge a Trust?

It can be more difficult to challenge a trust than a will, on any grounds, because it simply takes more thought, planning, and setup, to choose the right trust, fund it, transfer property into it, and leave directions for its administration.

All of this planning suggests that the settlor, the person making the trust, thought about it and knew what they were doing. That can make challenges saying that the settlor was mentally incompetent, harder to prove.

Call the West Palm Beach probate law attorneys at The Law Offices of Larry E. Bray today if you have a trust or will challenge in probate court.

Source:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0736/Sections/0736.0207.html