What Happens When the Trust and Transfer on Death Instructions on Accounts are Different?[/caption]

In an ideal estate planning scenario, a living trust is fully funded with assets, allowing the entire estate to pass to beneficiaries without dispute or need for probate court. Sadly, this is not always how things work out. Sometimes there may be a discrepancy between the living trust provisions and the Transfer on Death indication of an old investment or banking account. What happens in these situations? What do California’s probate laws say? Find out in the latest blog post from Max Alavi APC, OC Trusts Lawyer, and trusted estate planning attorney.

What Happens When the Trust and Transfer on Death Instructions on Accounts are Different?

In an ideal estate planning scenario, a family will have a living trust fully funded with assets, allowing their entire estate to pass to their beneficiaries through the trust itself. Of course, not every estate planning scenario is so neat and tidy! It is much more common for families to have at least a few banking and investment accounts with old beneficiary designation systems, often inconsistent with the terms of a living trust.

An Estate Planning Case Study

Here’s an illustration that might be helpful.

Imagine that Ashley sets up a living trust in which she names her three daughters as equal beneficiaries of her estate. Before establishing the trust, Ashley had a checking account on which she named only one of her daughters, Diane, as a Transfer on Death (ToD) beneficiary.

The three daughters are embroiled in a dispute regarding the checking account upon Ashley’s death. Diane claims that she is the account’s sole beneficiary, while her two sisters claim that the account should be equally shared among the three of them, according to the terms of the trust. So who’s right?

What Does the Probate Code Say?

Let’s take a closer look at what California’s estate planning laws say. Probate Code § 5302 dictates that a ToD designation, like the one associated with Ashley’s checking account, can fail if there is clear evidence that the deceased account owner intended to distribute assets differently than the ToD indicates. Case law in California establishes that a trust may prove this clear and convincing evidence.

Now let’s get back to our illustration. Since Ashley’s living trust called for an even division of her trust assets, and since the trust was created after she established Diane as the sole ToD beneficiary, there’s a decent chance that Diane’s sisters would win the day in probate court.

Get Help from a Probate and Estate Planning Attorney

But, of course, no family wants to face this level of tension or acrimony. One of the primary goals of estate planning is to provide clarity so that this kind of discord never happens. That’s what makes it so important to ensure that all elements of your estate plan are harmonized, something that a good law firm can help you with.

Max Alavi APC, OC Trusts Lawyer, has a proven track record of helping clients in Orange County, Los Angeles, and Long Beach Area arrive at sensible and effective estate plans. He has countless reviews that attest to his skill and his helpfulness. To find out more about coordinating a living trust with ToD accounts, schedule a consultation with Max Alavi APC, OC Trusts Lawyer.

Funding your trust is one of the single best things you can do to spare your beneficiaries from the probate court. Find out more about what it means to fund a trust, which items to include, and which items to leave out. Seek insight from Max Alavi APC, OC Trusts Lawyer.

How to Avoid Sending Your Loved Ones to Probate Court

Without a careful, well-considered estate planning strategy, many individuals inadvertently propel their loved ones straight into the court system, forcing them to undergo probate before claiming their inherited assets. Given probate’s reputation for being expensive and time-consuming, this is something to try to avoid.

One mistake that always leads to probate is having an underfunded trust. In this post, we’ll clarify what it means to fully fund a trust and which assets should (and shouldn’t) be included in the living trust.

What Does it Mean to Fund Your Trust?

Funding your trust can be defined as transferring assets from your name to the name of the trust. Beneficiary designations may also be changed to the trust.

There are three basic ways to fund your trust:

1. Change the title of an asset from your individual name to the name of the trust.
2. Assign your interest in an asset that doesn’t have a title (say, a piece of jewelry) to the trust.
3. Change the primary beneficiary of an asset to your trust (this is especially common with things like annuities and life insurance policies).

We recommend compiling a list of your assets, values, and locations. Start by funding the most valuable item on the list, then work your way down. Contact your estate planning attorney with any questions.

What Happens to Assets Omitted from Your Trust?

Simply put, if you leave assets out of your trust, you’re all but guaranteed to send your beneficiaries to the probate court, which can be a long, complicated, expensive, and aggravating process. This can happen even if you have a will, so make funding your trust a top priority.

Which Assets Should You Include in Your Trust?

There are certain types of assets that you’ll more or less always want to include in your trust. Here are the assets to fund:

• Real estate
• Bank and credit union accounts
• Safe deposit boxes
• Investment accounts
• Notes payable to you
• Life insurance
• Business interests
• Intellectual property
• Oil and gas interests
• Personal items of great value – think artwork, jewelry, collectibles, antiques

With that said, there are also certain assets you don’t want to fund to your trust. These include:

• IRAs and other tax-deferred retirement accounts
• Incentive stock options
• Foreign assets
• Cars, trucks, motorcycles, boats, motorized scooters, and other types of vehicles

What are the Benefits of Funding Your Trust?

There are several advantages to fully funding your trust. These include:

• Your trustee can access your assets without needing a court order.
• Your wishes (and the contents of your estate) can remain confidential.
• Your beneficiaries will not experience the costs and frustrations associated with probate.

With any additional questions about funding a trust, make sure you reach out to a skilled and experienced attorney in your community. Schedule a consultation with Max Alavi APC, OC Trusts Lawyer, today.

Summary

Life changes all the time. As it does, your estate plan should change with it. Most estate planning lawyers recommend revisiting your will and trust every three to four years. Additionally, revisit it if you experience any of the following circumstances:

1. You get married, get divorced, or lose your spouse.
2. Your financial situation changes, either for good or for ill.
3. You either launch or dissolve a business.
4. You experience the birth, adoption, or death of a child or grandchild.
5. Your personal or family circumstances change in other ways, including geographic relocation.
6. Your goals change; for instance, you decide to change who inherits what, or you want to add a charity to your estate plan.
7. Find out more about revisiting an estate plan. Connect with Max Alavi APC, OC Trusts Lawyer.

As Circumstances Change, So Should Your Estate Plan

Your estate plan was designed to address your needs, goals, and aspirations as you see them, not reflecting both your present financial realities and your current family dynamics. But in life, the one constant is change… and as your life takes new twists and turns, it’s important to ensure your estate plan is up to date.

When Should You Revise Your Estate Plan?

There are a number of circumstances in which it might behoove you to update your estate plan. Six of the most common reasons are:

1. You get married, get divorced, or lose your spouse.
2. Your financial situation changes, either for good or for ill.
3. You either launch or dissolve a business.
4. You experience the birth, adoption, or death of a child or grandchild.
5. Your personal or family circumstances change in other ways, including the need to replace trustees, address disabilities or addictions, a geographic relocation, etc.
6. Your goals change; for instance, you decide to change who inherits what, or you want to add a charity to your estate plan.

One more thing: Just as your life changes, the federal and state laws that affect estate planning can change, too. Regularly reviewing your estate plan with a qualified attorney can ensure you’re up to date on the latest regulations.

Updating Your Will and Trust: Case Studies

To further illuminate the reasons why you might change your estate plan, consider this example.

Bob and Jill have been married for 20 years, and have three kids. Some years ago, they set up a living trust to ensure their family’s needs were taken care of in any contingency.

Since that time, their family has endured many changes, some good and some bad. Let’s take a look.

Divorce. Bob and Jill’s oldest son divorced his wife. Now the family needs to update their trust to exclude her as a beneficiary.

Changes in financial status. When Jill’s aunt died, she left Bob and Jill a great deal of money. They need to update their estate plan to properly allocate this money, and to plan for tax implications.

Birth. Bob and Jill’s daughter just announced that she is expecting a child. Naturally, Bob and Jill want to ensure their grandchild receives a portion of the family inheritance.

Changes in personal circumstances. The youngest son was involved in a car accident that left him severely injured, unable to work. He is eligible for government disability benefits, but getting income from a trust would disqualify him. Bob and Jill likely need to set up a special needs trust.

Changes in tax law/venue. Changes in Federal Law that may result in your estate being a taxable estate.

How Often Should You Check in on Your Estate Plan?

As a rule of thumb, it’s wise to check in with your estate planning attorney every three or four years. You may wish to review your plan more frequently if you go through any major life changes, like the one’s Bob and Jill experienced.

The Basics of California’s Intestate Inheritance Law

What happens to your assets if you die without a will in place, or without your assets being properly assigned to the will on file? According to California’s intestate inheritance laws, there may be some situations in which your assets are divided among surviving relatives, simply on the basis of your relationship to them.

In summary, if you die without properly naming heirs and beneficiaries, interstate laws take over. Your assets will likely pass first to a surviving spouse, then children, and finally parents or siblings.

Here’s what California residents should know about this inheritance law, also known as intestate succession.  To learn more about California inheritance law, connect with Max Alavi APC, OC Trusts Lawyer.

Intestate Succession in California: Covering the Basics

Your Spouse

You might assume that, if you die without naming heirs or beneficiaries, all of your assets will go immediately to your spouse. This isn’t quite the case.

According to California’s intestate succession law, if the deceased person was married and has no living children, their spouse will inherit the entire estate. If the deceased person was married and does have living children, the spouse will typically inherit half of the estate, with the children inheriting the other half.

Your Children

According to inheritance law in California, if you die and do not have a living spouse but do have living children, then your children will inherit the entire estate. The estate will be decided and allocated between them in equal shares.

Your Parents

Intestate succession laws also dictate that, if you die without a living spouse or children, your assets will then go to your parents.

Your Siblings

In the event that you die without a living spouse, children, or parents, then your estate will go to your siblings. It will be divided and allocated between them in equal shares.

The State

Should you die without a will in place, and without any living relatives at all, then your estate will pass to the State of California itself.

Exceptions and Other Guidelines

What we’ve outlined here is the general rule of California’s intestate succession laws. However, there are a number of exceptions and special circumstances, which make it essential to talk with your estate planning lawyer about your specific situation.

For example:

• If you name a beneficiary or heir but that person dies within 120 hours of your own death, that person is not considered to inherit your estate.
• Immigrants, regardless of their legal status, may inherit assets through California’s intestate succession process.
• If you die due to nefarious causes, the person who caused your death may not inherit your assets, even if they might otherwise be named your successor via California’s inheritance laws.
• There are certain types of assets that are not encompassed by intestate laws and may pass directly to a named heir or beneficiary. Examples include life insurance policies, retirement accounts, bank accounts, and living trusts.

Using Living Trusts in Your Estate Planning

Intestate succession laws provide some guidance regarding the allocation of assets upon your death. To gain greater control over how your estate is distributed upon your death, a living trust may be the solution.

Max Alavi APC, OC Trusts Lawyer, has significant experience helping individuals establish effective estate planning through living trusts. Schedule a consultation today in order to discuss the best ways to meet your CA estate planning goals.

Family gatherings can be excellent times to discuss estate planning concerns. Topics addressed might include which family members want personal properties and who you will appoint as executors or decision-makers. Additionally, family meetings can be good times to develop family histories and preserve your legacy and story. Learn more from Max Alavi APC, OC Trusts Lawyer:

Include a Family Meeting in Your Next Family Reunion

Summer will be here before you know it, and with it, the opportunity for large family gatherings. Whether you’re heading to the beach or simply congregating around the barbecue pit, family reunions can be loads of fun. As you plan this year’s gathering, however, you may want to consider scheduling a little time to discuss business. Specifically, family reunions can be significant opportunities to talk about estate planning.

What to Talk About at Your Family Meeting

The specifics of the meeting agenda may vary from family to family, but here are a few of the most common estate planning topics to discuss.

• Discuss Who should be appointed as a decision-maker. Your estate plan should include the names of people you trust, named to serve as your estate’s executor or power of attorney. You may wish to inform your family about which people you’ve selected to make financial or health-related decisions on your behalf and also to provide your rationale.
• Discuss your end-of-life wishes. It’s helpful to provide your loved ones with clarity about what you wish them to do should you ever be placed on life support or become medically incapacitated. The person named as your healthcare decision-maker must know what your wishes are.
• Discuss the assets people want. Family meetings can also be good forums for people to express their wishes to receive a particular piece of furniture, jewelry, artwork, or family heirloom. You may be surprised to learn which items family members have emotional attachments to. Also, talking about these items in advance helps reduce the chances of hurt feelings or disappointment, particularly in cases where two people might desire the same thing.
• Your family history. Another reason to hold a family meeting is to discuss favorite memories, write them down, or even take some videos. This is a great way to preserve your family’s story and legacy beyond tangible assets and personal properties.

OC Trusts Lawyer Assists Families with Estate Planning Complexity

Max Alavi APC, OC Trusts Lawyer, has a proven track record helping families navigate estate planning complexities, ensuring all family members are on the same page about asset allocation and other vital issues. To further explore your estate planning options, schedule a consultation today.

Elderly financial abuse can involve acts of neglect, fraud, or exploitation that adversely affect the financial standing of a senior citizen or a dependent adult. Often, financial abuse of the elderly can involve the elderly trust administration and probate administration. To ensure adequate protection, it’s important to know what qualifies as elderly financial abuse and to speak with a Trust Litigation Lawyer about these issues. Learn more in this post from Max Alavi APC, OC Trusts Lawyer.

What is Elderly Financial Abuse?

We all need more assistance as we age. Sadly, there are people, including family members, who prey on the elderly in times of their need. Elderly financial abuse is all too common. According to California law, elderly financial abuse occurs whenever an older or dependent adult is subjected to financial exploitation or fraud.

What Does Financial Abuse of the Elderly Look Like?

Multiple factors make a situation qualify as financial abuse of the elderly. Those factors include:

• The victim is a senior citizen (age 65 and over) or dependent adult (age 18 to 64 but with a significant physical or mental impairment that makes independent living prohibitive).
• The defendant took advantage of the victim’s vulnerability or impaired state to exploit them; for instance, by obtaining or using the victim’s funds without their awareness or consent.
• The defendant acted recklessly or intended to defraud/exploit the victim.
• The victim suffered harm or loss, including the loss of money or inability to secure food, shelter, medical care, and other essentials.
• The defendant’s actions played a consequential role in the victim’s loss.

Elderly Financial Abuse, Trust Administration, and Probate Administration

Elderly Financial elder abuse often comes to light only after the passing of the elderly person, which then can be linked with estate planning issues, including trust administration and probate administration. Consider some examples:

• A person uses undue influence to coerce an elderly person to change the terms of their will or trust (often to the defendant’s benefit).
• A person practices fraud, falsifying documents to obtain an inheritance or other benefits of a deceased person’s estate.
• A trustee or executor mismanages or embezzles assets associated with an estate.
• A trustee or executor breaches their fiduciary duty, taking self-serving actions or simply harmful to the estate.
• A person who has a duty to administer the estate is neglectful in their actions, failing to do what is needed to preserve the estate’s full benefits on behalf of beneficiaries.

Elderly Financial Abuse: A Case Study

For an example of what elderly financial abuse might look like in the State of California, consider the case of Niece v. Benedict (2017).

The case involved an 87-year-old woman who lived in a nursing home, suffering from dementia. Her niece was named the sole beneficiary of her estate, with the woman’s sister as the alternate beneficiary.

After the elderly woman passed away, her sister contested the will, claiming that the niece had coerced the woman into changing her will. The sister further claimed that the niece had isolated the elderly woman from her loved ones, controlling her finances and denying her medical care.

The court ruled in favor of the sister, finding that the niece had unduly influenced the elderly woman to change her will while she was suffering from dementia and unable to make clear decisions on her own. The court also found that the niece had engaged in elder abuse by isolating the woman from her family and blocking her from receiving medical care.

Get the Protection You Need from a Skilled Estate Planning Attorney

This case study reveals the importance of protecting the rights of elderly individuals, upholding their wishes, and caring for them even if they suffer from mental and physical impairments. It also shows that financial elder abuse can occur even at the trust administration or probate administration stage, often with dire consequences.

One way to put the right protections in place is to meet with an estate planning attorney. Max Alavi APC, OC Trusts Lawyer, is here to answer any questions about averting elderly financial abuse in will and trust. To schedule a consultation, contact Max Alavi APC, OC Trusts Lawyer, today.

Before heading out on summer vacation, attend to some estate planning basics. Doing so can give you and your family ample peace of mind. Some estate planning steps include checking your guardian nominations, verifying correct signatures, and ensuring your estate planning documents are properly organized. Find out more via Max Alavi APC, OC Trusts Lawyer.

Planning Your Summer Vacation? 5 Things to Consider Now

Summer vacations can provide a much-needed reprieve from your 9-5 life, allowing you and your loved ones a chance to rest, relax, and reconnect. Before embarking on your seasonal sojourn, however, there are a few preparations you’ll want to make. These include a few basic estate planning activities.

5 Estate Planning Considerations for Summer Vacation

1) Guardian nomination.

Some low-level risk is always associated with summer vacationing, whether you’re traveling by car or plane. If you and your spouse don’t make it back from your trip, who will serve as guardians for your minor children? We recommend double-checking your estate plan to ensure you’ve named the appropriate person.

Remember that if you do not name someone to serve as the guardian to your minor children, and if you and your spouse both pass, the court will appoint someone to take care of your children moving forward. This may or may not be someone you would have wanted for the job, so it’s always best to be clear in nominating your chosen guardian. We see all too many situations in which custody of children goes to a deceased parent’s sister or brother, even when that sister or brother may have limited income, several kids of their own to worry about, an unsupportive partner, or a lifestyle that isn’t conducive to taking on another child. Talk to your estate planning attorney about avoiding this fate.

2) Beneficiary designations.

It’s very uncommon for people to have outdated beneficiary designations, or at the very least, that hasn’t been reviewed in a long time. We recommend taking just a few minutes to log into your IRA, 401(k), and/or life insurance company’s website to double-check your beneficiary designations to check double that these assets will be allocated according to your wishes, should the unthinkable happen to you while you’re vacationing.

3) Health care documents.

Suppose you become seriously injured, ill, or even incapacitated while on your trip; it may fall to one of your loved ones to make important financial or healthcare decisions on your behalf. Ensure the right people make these decisions and enjoy general peace of mind. At the same time you travel, ask your estate planning lawyer to review your powers of attorney and advance health directives.

4) Signatures.

Do you have a will, trust, and other unsigned documents? Perhaps you haven’t signed because you’re still reviewing them, but remember that they are not legally valid without a signature. Rather than wait until they are “perfect,” reach out to your estate planning attorney to develop a plan for getting them signed ASAP. Remember that you can always make changes or revisions in the future.

5) General organization.

Where do you keep your hard copy and a digital copy of your estate planning documents? Choose a safe location in your home to store at least one hard copy, and always create a folder on your hard drive or personal cloud storage site to have access to a backup digital copy. You should also inquire about keeping a copy on file at your estate planning law firm.

Check-in with Your Estate Planning Lawyer

Getting your estate plan in order can provide additional peace of mind while you travel, rest, and relax. If you’re in the Orange County area, we invite you to contact Max Alavi APC, OC Trusts Lawyer. He has a proven track record of helping clients prepare for all scenarios. Contact the estate planning law firm of Max Alavi APC, OC Trusts Lawyer, today.

Estate planning allows you to prepare for all contingencies, including possibly a loved one becoming disabled. One of the challenges associated with a disability is that any financial gift may disqualify the beneficiary from receiving public assistance. One way to sidestep this problem is by creating a standby supplemental needs trust, which can come into effect only when needed to supplement government benefits. Find out more from the living trust law firm of Max Alavi APC, OC Trusts Lawyer.

How a Standby Supplemental Needs Trust Can Protect Your Loved Ones

It’s always wise to be prepared, planning even for those “just in case” scenarios you hope will never materialize. When you leave for a beach trip, you probably take rain gear with you, even if the forecast shows nothing but sun and clear, blue skies. And in much the same way, you should use your estate plan, including your living trust, to prepare for all possible contingencies, even those that seem a little unlikely. Specifically, it’s wise to prepare for the possibility that one of your loved ones might become disabled.

Disability: More Common Than You Think

Indeed, the risk of a loved one becoming disabled may be higher than you’d think. Statistics tell us that about 61 million U.S. adults live with a disability, roughly one out of every four. About a quarter of all twenty-year-olds will become disabled before retirement age. And, of course, it’s impossible to predict if, when, and how disability might strike; it could result from illness, accident, or injury. Both physical and mental disabilities can affect people of all ages.

The bottom line: Even if you don’t currently have any loved ones who are disabled, it’s still wise to plan for that eventuality. A good living trust lawyer can provide you with some options.

Thinking Through Your Disability Planning Options

If one of your loved ones becomes disabled, they may need financial assistance from government programs like Social Security Disability Insurance or simply Medicaid. These programs can be lifesavers, but they have their downsides. For example, any monetary gift or inheritance from you may disqualify your loved one from receiving their public benefits. In other words, a well-intended gift can become a curse.

One way to avoid this fate is to set aside a supplemental needs trust. This kind of trust stipulates that the assets included are only available to supplement any public benefits the beneficiary is already receiving. 

In other words, the trust’s money and property are not included as available resources when determining your loved one’s eligibility to receive needs-based benefits from the government. A “standby” supplemental needs trust essentially goes into effect only if a beneficiary is disabled at the time of your death or, depending on the eligibility rules in your state, becomes disabled at a later date but before the trust has been fully distributed. 

Suppose your loved one with a disability receives government assistance at the time of your death. In that case, the inheritance the beneficiary receives from you in a supplemental needs trust will not adversely affect the assistance they receive from government programs.

Speak with a Living Trust Attorney Today

To learn more about your options for supporting disabled family members, now or as a future contingency, we welcome you to speak with a representative from our living trust law firm. Max Alavi APC, OC Trusts Lawyer, has a proven track record of helping clients prepare for all contingencies. Schedule a consultation with our living trust law firm at your convenience. 

A will is a legal document that distributes a decedent’s property according to their wishes after passing. When a will goes through the court’s probate system, its validity can be challenged by those who have standing to contest the will. According to the State of California probate law, parties who have standing to contest a will include the will’s beneficiaries and the decedent’s heirs. Below are 3 common ways for these parties to challenge a will:     

Not the decedent’s signature on the will

California law requires the decedent to sign the will. (Probate Code, section 6110). The signature demonstrates that the will is final and genuine. Usually, if the decedent signed by hand their full name at the end of the document, the signature requirement is almost always satisfied. However, a will is not valid if the purported signature on the will does not belong to the decedent.

Forged Will Signatures: A Case Study

For an example of what a forged will signature on a purported will might look like in California, consider the case of People v. Craig (2015):

After decedent Sherry Behrle passed away, Kelli Dawn Craig, a neighbor and caregiver for Behrle who had lived in the rear unit of Behrle’s house, filed a petition to probate Behrle’s purported will that named Craig as the executor and left everything that Behrle owned to Craig.

During a police investigation, Craig admitted that she signed Behrle’s signature on the will.  

The court denied Craig’s petition to probate Behrle’s purported will because it was not properly executed due to Behrle’s forged signature. Also, the court affirmed the two-year prison conviction ordered upon Craig for perjury and forgery.

2. There’s a problem with the decedent’s holographic will

Holographic wills are handwritten and signed by the decedent. They do not require attestation by witnesses. California is among one of many states that permit holographic wills. (Probate Code, section 6111). However, a purported holographic will may not be valid if it fails to meet certain requirements. For instance, a holographic will must include the decedent’s handwritten signature. Also, it must include material provisions in the decedent’s handwriting, such as the named beneficiaries and the property to be distributed. (Probate Code, section 6111).

3. There are 2 (or more) wills

A will is an ambulatory document, meaning that the decedent can amend or revoke it at any time prior to their passing. California permits a will to be revoked by “a subsequent will which revokes the prior will or part expressly or by inconsistency” and by physical acts that destroy the will. (Probate Code, section 6120). However, a document that purports to revoke a will may be void if it does not follow these requirements.

Protect your legacies today with a Skilled Estate Litigation Attorney

The law of wills strongly aims to dispose of a decedent’s property according to their true and genuine intent. Contesting a will can be a challenging process, but Max Alavi APC, OC Trusts Lawyer, is here to help you win. If you believe you have a case to contest a will, contact Max Alavi, OC Trusts Lawyer to schedule a consultation today.

Before contesting a trust, it’s important to ensure you have the right legal grounds, along with clear evidence that trust law has been breached in some way. It also helps to understand what the process of contesting a trust actually looks like, and to explore options for an alternative resolution. Get insight into all of these factors via OCTrustsLawyer.com.

Understanding the Odds: Your Chances of Successfully Contesting a Trust

One of the primary reasons to create a trust, including it in your estate plan alongside a will and other key documents, is to minimize your exposure to the court system. When carefully drafted and rightly administered, a trust can potentially help the trust maker (called the grantor) and all named heirs and beneficiaries to avoid the lengthy, tedious process of probate court.

With that said, even a trust that is created and managed skillfully may be challenged. A contested trust often requires trust litigation to arrive at a binding resolution.

Trust contests can be emotionally charged and legally complex situations. When beneficiaries or interested parties believe that a trust is invalid or improperly administered, they may decide to contest it in court. If you think that a trust in which you are named, or a trust created by a family member or loved one, is invalid for any reason, you may pursue legal action to have the trust contested.

However, before embarking on this journey, it’s crucial to have a realistic understanding of the chances of success. This blog post will delve into the key factors influencing the likelihood of successfully contesting a trust.

What are the Grounds for Contesting a Trust?

First and foremost, before contesting a trust, it’s important to have a clear, solid reason for doing so. There are several grounds on which you might contest a trust, including:

• Questions about the mental capacity of the grantor at the time the trust was made or amended.
• Suspicions of one of the heirs or beneficiaries exerting undue influence or manipulating the grantor.
• Allegations that the trust has been mismanaged by the trustee could denote negligence or even fraud.
• Ambiguity or lack of clarity in the actual language of the trust.

Contesting a Trust: Strength of Evidence

To see a trust contested successfully, you’ll need more than just allegations or inferences. You’ll need clear, compelling, concrete evidence that the trust has been mishandled somehow. Examples of evidence you might use for contesting a trust include crucial documents, witness testimonies, and experienced opinions. For example, if you’re contesting a trust on the basis of mental incapacity, it would help you have written reports or given statements from the grantor’s physician.

The type of evidence you can collect will significantly impact your odds of contesting the trust.

What are the Legal Requirements for Contesting a Trust?

Generally speaking, if you’re going to contest a trust, you must demonstrate that the trust law has been broken in a fairly straightforward and decisive way. In other words, it is not enough to say that a grantor or trustee has made decisions you disagree with. You must provide evidence that the trustee has broken their fiduciary responsibility, committed fraud, or breached trust laws in some other way. Additionally, you may provide evidence that the grantor or trustee has broken the stated terms or purpose of the trust itself, which will require scrutiny of the trust documentation.

Is There a Trust Contest Statute of Limitations?

Something else to remember is that, to contest a trust, you must abide by the statute of limitations. If you miss a deadline to file your challenge, you may forfeit your standing to contest the trust at all.

So, what is the statute of limitations? It varies from state to state and, in some places, may be as much as two years. In California, you have 120 days to contest the trust, starting from the day the probate court mails out notice of the trust’s administration.

What About Beneficiary Status?

Your legal standing as a beneficiary or an interested party can also impact your ability to contest the trust.

Simply put, you must have some legal standing to challenge a trust, which usually means being named in the trust in some form or fashion. However, the California Supreme Court recently ruled (in the Barefoot v. Jennings case) that you can also contest a trust if you can offer clear evidence that you were disinherited or written out of an estate due to undue influence, lack of mental capacity, or some other clear violation of trust protocols.

What’s the Court Procedure for a Trust Contest?

If you do decide to move forward with a trust contest, there are a few steps you’ll need to follow. These steps include:

• Filing an initial complaint, denoting your reasons for contesting the trust.
• A discovery phase, wherein you offer your evidence and documentation.
• Either a full trial (involving a trust litigation attorney) or a negotiated settlement.

An experienced trust litigation lawyer can help you navigate each step in the process, ensuring you meet the proper filing deadlines and understand your available options to litigate or settle.

To Have a Trust Contested, Seek Legal Counsel

Contesting a trust is a significant legal undertaking and should not be entered into lightly. Before you contest a trust, it is imperative to seek guidance from a skilled attorney who can assess your case, provide you with clarity about your odds of success, and walk you through alternative resolution options.

As you seek the expertise of a firm that has a proven track record of success in trust litigation, keep our firm in mind; contact us at OCTrustsLawyer.com to learn more.