What Happens When a Living Trust Is Contested?

By River Braun, J.D.

What Happens When a Living Trust Is Contested?

By River Braun, J.D.

If interested individuals want to contest someone else's living trust, they must file a lawsuit. There are several grounds on which a trust can be contested. The individual taking the case to court needs to provide evidence that the assets held in the trust cannot be legally distributed as defined by the document.

An elderly couple and younger woman speaking with a suited man

Contesting a Living Trust

A living trust, also known as a revocable trust or inter vivid trust, is an estate-planning document that allows someone to place assets into a trust for their own benefit during their lifetime. Once they die, the beneficiaries receive the remaining assets, in accordance with the trust's terms.

The process to contest a trust begins with filing a lawsuit in probate court in the state that has jurisdiction. This may not necessarily be the state in which the trust was executed, depending on the type of lawsuit. An experienced attorney can be a helpful resource if you are thinking about contesting a living trust.

Prior to filing a lawsuit, you need to prepare certain documents, which may include a petition to contest a trust or a complaint. The necessary documents differ depending on the state and county in which you file your lawsuit. In addition to proper paperwork, you must also have standing to sue. This means you have some stake in the case's outcome.

Grounds for Contesting a Living Trust

You can contest a living trust if you have evidence that it violates state laws. Laws vary from state to state, but there are three similar grounds on which you can build your case. The first is incompetence. Every state requires that a person be mentally competent when creating a trust. For example, Molly believes that her mother was suffering from dementia when she created her trust. Molly must provide evidence of the illness, thus proving her mother's mental incompetence, to win her case.

States also require that a person be free of undue influence when creating a trust. Molly might believe that her brother, Steven, convinced her mother to change her trust to remove Molly as a beneficiary. Molly must prove that Steven unfairly influenced their mother.

These two legal requirements help ensure that a trust reflects a person's true wishes. In Molly's example, a probate court would take into account witness testimony on the mother's mental state and from anyone who can affirm Steven's behavior.

In addition to claims of incompetence and undue influence, Molly might have reviewed the trust and found that there were defects in the document that make the trust invalid under state law. For example, in California, a trust is defective if it is not:

  • Signed by the maker in the presence of two witnesses
  • Signed by the two witnesses
  • Witnessed by two individuals who are not beneficiaries of the trust

Molly may believe that her mother did not actually sign the trust, but rather, Steven did. Or perhaps the witnesses' signatures were forged. Again, Molly needs to present proof of these claims, including witness testimony or signature authentication.

 

If the probate court does not agree with your claim that the trust is invalid, then the assets will be distributed as outlined in the document. However, if you win your trust contest, the trust will be deemed invalid and the assets will be distributed in accordance with state intestate succession laws.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.