• Menu
  • Skip to right header navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Before Header

Call us today for help!  (305) 456-3255
  • Facebook
  • Instagram
  • LinkedIn
  • Twitter
  • YouTube

Stivers Law Logo

Coral Gables Florida Estate Planning Attorneys

  • Home
  • Our Firm
    • About Justin Stivers, Attorney
    • About Our Firm
    • Communities We Serve
      • Miami-Dade County
        • Coral Gables
        • Doral
        • Miami
        • Miami Springs
  • Services
    • Estate and Gift Tax Figures
    • Financial Planning Assistance
    • IRA Inheritance Planning
    • Medicaid And Elder Law Services
      • Guardianship for Young Children
      • Options for Paying for Nursing Home Care
    • Minor Children and Young Adult Planning
    • Outdated Estate Planning Documents
    • Pet Planning
    • Emergency Documents, Powers of Attorney, & Healthcare Documents
    • Remarriage & Blended Families Protection
    • SECURE Act
    • Special Needs Planning
    • Trust Administration and Probate
    • Wills and Trusts
  • Events
    • Live Events
    • Online Events
      • Special Needs Planning
      • Trustee Workshop
  • Resources
    • Moving To Florida
    • Frequently Asked Questions
      • Estate Planning
      • Incapacity Planning
      • Probate & Trust Administration
      • Wills and Trusts
    • Pre-Consultation Form
    • Reports
      • Legacy Wealth Planning
  • Blog
  • Contact Us

Mobile Menu

  • Home
  • Our Firm
    • About Justin Stivers, Attorney
    • About Our Firm
    • Communities We Serve
      • Miami-Dade County
        • Coral Gables
        • Doral
        • Miami
        • Miami Springs
  • Services
    • Estate and Gift Tax Figures
    • Financial Planning Assistance
    • IRA Inheritance Planning
    • Medicaid And Elder Law Services
      • Guardianship for Young Children
      • Options for Paying for Nursing Home Care
    • Minor Children and Young Adult Planning
    • Outdated Estate Planning Documents
    • Pet Planning
    • Emergency Documents, Powers of Attorney, & Healthcare Documents
    • Remarriage & Blended Families Protection
    • SECURE Act
    • Special Needs Planning
    • Trust Administration and Probate
    • Wills and Trusts
  • Events
    • Live Events
    • Online Events
      • Special Needs Planning
      • Trustee Workshop
  • Resources
    • Moving To Florida
    • Frequently Asked Questions
      • Estate Planning
      • Incapacity Planning
      • Probate & Trust Administration
      • Wills and Trusts
    • Pre-Consultation Form
    • Reports
      • Legacy Wealth Planning
  • Blog
  • Contact Us

Is It Possible to Challenge a Trust?

Coral Gables trust attorneys

Date: November 3, 2022

Coral Gables trust attorneysAfter a Last Will and Testament, a trust agreement is among the most used estate planning documents. Trusts are included in an estate plan for a wide variety of reasons, including to help an estate avoid probate. Whether you are thinking about creating a trust, are responsible for administering a trust, or are the beneficiary of a trust, you may wonder if it is possible to contest a trust. The Coral Gables trust attorneys at Stivers Law explain when and how you can challenge a trust.

Trust Basics

A trust is a separate legal entity that owns and holds property for the benefit of one or more beneficiaries. A trust is created by a Settlor who transfers property to a Trustee appointed by the Settlor. The Trustee holds that property for the trust’s beneficiaries.  All trusts fit into one of two categories – testamentary or living (inter vivos) trusts. Testamentary trusts are typically activated by a provision in the Settlor’s Last Will and Testament and, therefore, do not become active during the lifetime of the Settlor. Conversely, a living trust, as the name implies, does activate during the Settlor’s lifetime.  Living trusts can be further subdivided into revocable and irrevocable living trusts.

Contesting a Trust

You are likely familiar with the concept of a Will contest wherein someone (usually a beneficiary or heir) challenges the validity of a decedent’s Will that has been submitted for probate. A Will contest can be costly – both in terms of time and money. The desire to avoid both probate and litigation is one of many reasons people often choose to rely predominantly on a trust to distribute their estate. Can that trust be contested though? The answer is “yes,” a trust can be contested; however, it is typically a more complicated process than contesting a Will.

Contesting a trust works essentially the same as contesting a Will. As with a Will contest, you cannot challenge a trust simply because you are not happy with the terms of the trust agreement. In other words, being left out of a trust is not a valid legal reason to challenge the trust. Instead, you must use one of the legal reasons allowable under state law which governs most issues related to wills, trusts, and estates. For example, you could challenge the Settlor’s capacity to create the trust. In this setting, capacity refers to the mental state necessary to establish the trust. You might also contest a trust by claiming that the Settlor was subject to “undue influence” at the time the trust agreement was executed. Improper execution and/or technical flaws with the trust agreement itself can also serve as the basis for a challenge to a trust.

To contest a trust, you will also have to have “standing.” Standing is the legal term used to refer to someone who has the legal right to initiate a legal proceeding. In the case of a Will or trust contest, a person must usually be a beneficiary, heir, previous beneficiary, or sometimes a creditor to have the standing required to proceed. If you have standing and you believe you have a valid legal reason to contest a trust, a trust contest can be initiated by filing the necessary legal documents with the appropriate court.

What Is a No Contest Clause?

To discourage challenges to a trust, a Settlor may include a “no contest” clause in the trust agreement. A “no contest” clause effectively states that if a beneficiary unsuccessfully challenges a trust (or Will) they forfeit the inheritance designated for them in the trust. Of course, the trust must dictate that some assets are to be distributed to the individual for a no-contest clause to work as intended. For example, imagine that your estate is worth $5 million, and you are concerned that a child might challenge your trust. To discourage that challenge you could include a provision that gifts $100,000 to your child and add a no-contest clause.  Your child forfeits that $100,000 if he/she contests the trust unsuccessfully. Because state laws govern the enforceability of no-contest clauses, be sure to check with your trust attorney to determine if adding one to your trust is a good idea.

Contact Coral Gables Trust Attorneys

For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about contesting a trust, contact the experienced Coral Gables trust attorneys at Stivers Law by calling (305) 456-3255 to schedule an appointment.

  • Author
  • Recent Posts
Avatar for Leigia Rosales
Leigia Rosales
Avatar for Leigia Rosales
Latest posts by Leigia Rosales (see all)
  • Is It Possible to Challenge a Trust? - November 3, 2022
  • How Estate Planning Can Protect Unmarried Couples - November 1, 2022

Category: Trust

Date: November 3, 2022

Category: Trust

Previous Post: «Coral Gables estate planning attorneys How Estate Planning Can Protect Unmarried Couples
Next Post: Can I Be Personally Liable If I Serve as a Trustee? Coral Gables trust attorneys»

Primary Sidebar

Download Our Free Guide: The Top 3 Mistakes Families Make When Creating an Estate Plan

There's a lot that goes into setting up a comprehensive estate plan, but with our FREE guide, you'll be one step closer to getting yourself and your family on the path to a secure and happy future.

Blog Subscription

Sign up for our blog to receive the latest estate planning news from Stivers Law Firm.
checkbox

Follow Us

  • Facebook
  • Instagram
  • LinkedIn
  • Twitter
  • YouTube

Where We Are

Stivers Law
110 Merrick Way Suite 2C
Coral Gables, FL 33134
Phone: (305) 456-3255

See Larger Map Get Directions

Office Hours

Monday9:00 AM - 5:00 PM
Tuesday9:00 AM - 5:00 PM
Wednesday9:00 AM - 5:00 PM
Thursday9:00 AM - 5:00 PM
Friday9:00 AM - 5:00 PM

Footer

Office Location

Stivers Law
110 Merrick Way Suite 2C
Coral Gables, FL 33134
Phone: (305) 456-3255

See Larger Map Get Directions

Office Hours

Monday9:00 AM - 5:00 PM
Tuesday9:00 AM - 5:00 PM
Wednesday9:00 AM - 5:00 PM
Thursday9:00 AM - 5:00 PM
Friday9:00 AM - 5:00 PM

Sign Up for Our Newsletter

Sign up to get our free estate planning newsletter for all of our tips and resources

  • Our Firm
  • About the American Academy
  • Disclaimer
  • Privacy Policy
  • Sitemap
  • Contact Us