Ideally, when you die your estate plan will kick in and provide a roadmap for the disposition of all your estate assets during the probate process that follows your death. Sometimes, however, the probate process does not run as smoothly as anticipated. A Will contest, for example, can significantly slow down the probate of your estate. Like many people, you may have elected to incorporate a trust into your estate plan and then transferred the majority of your assets into the trust. Can someone contest a trust like they do a Will though?
A Will contest can hold up the probate process for months, even years. Moreover, if the decedent’s Last Will and Testament that was submitted to the court is ultimately determined to be invalid it can completely change the distribution of estate assets. Creating a trust agreement to hold most of your estate assets does not completely eliminate the possibility of a challenge to your estate; however, it does make a successful challenge less likely.
Like a Will contest, a trust can be contested though it is typically more difficult to invalidate a trust agreement. Contrary to what many people believe, a Will or trust contest cannot be filed simply because a beneficiary or heir is unhappy with the terms of the Will or trust. A Will or trust contest must allege that the document is not legally valid. Usually this means the contest must allege that the Will or trust agreement was fraudulently executed or was executed under duress or while under the undue influence of a third party. Proving duress or undue influence in the case of a trust agreement is generally more difficult because, unlike a Will, a trust agreement is not usually prepared and executed in a single sitting. Instead, a trust agreement typically takes several consultations with an estate planning attorney, making it less likely that the trust agreement could be executed while the maker was under duress of the undue influence of a third party.
While a true trust contest is relatively rare, it is common for beneficiaries of a trust to petition a court to modify or even terminate trust agreement if there is a problem with the terms of the trust or if the purpose of the trust is no longer practical.
If you have additional questions or concerns about Will or trust contests, contact the experienced South Carolina estate planning attorneys at Kuhn & Kuhn Law Firm by calling 843-577-3700 to schedule your appointment.
John Kuhn, Estate Planning Attorney
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