Long Island Elder Law & Estate Planning

revocable living trust in smithtown nyIt is possible to contest a last will, and most people are aware of the fact that a will can be challenged. In fact, the system is set up in a way that makes it relatively simple to challenge the validity of a will.

When you utilize a last will to express your final wishes the will must be admitted to probate. The probate court is charged with the responsibility of determining the validity of the will. As a result, a ready-made forum exists for anyone who wants to come forward presenting a will challenge.

This raises an interesting question. Okay, you can challenge a will. But can you challenge a trust?

Trust Challenges

It is possible to challenge the terms of a trust, but challenging a trust is more complicated than challenging a will. You don’t have a court sitting in wait fully prepared to review any challenges that are presented before assets are distributed to the heirs.

To challenge the terms of a trust you have to initiate a lawsuit. Clearly, this can be complicated, and there will be legal costs involved.

You may hear some people suggest that you can literally prevent estate challenges by using a trust such as a revocable living trust to prepare for the distribution of your assets after you die. They contend that this can be accomplished through the inclusion of a no contest clause.

Let’s explain the purpose of this type of clause by way of example. The trust in question names multiple beneficiaries, allowing for certain monetary distribution levels. The person creating the trust (the grantor) suspects that one of the beneficiaries will not be happy with the terms of the trust.

The grantor could include a no contest clause. This would allow for the total disinheritance of a beneficiary who initiated a legal action to challenge the terms of the trust.

Claiming that this type of clause makes it impossible to contest a trust is simply false. Someone could contest the trust, but this individual would be taking a risk. If the legal action did not bear fruit, the inheritance that he or she would have received would no longer be forthcoming.

Yes, a no contest clause can have value because it acts as a powerful disincentive. But it does not literally prevent someone from challenging the terms of a trust.

Ultimately, you can do what you want to do when you are planning your estate. You may have your reasons for wanting to send a message to a particular family member.

At the same time, to truly prevent challenges to your trust you should consider the possibility of legal actions. It could be said that the best way to avoid a challenge would be to plan your estate in a way that is not going to ignite a legal battle.

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About Eghrari Wealth Training Law Firm

Mark S. Eghrari is an attorney in private practice in Smithtown, New York. He has been in practice since 1988. Mark S. Eghrari provides extensive estate and tax planning services to individuals and businesses. Mr. Eghrari’s primary focus is helping clients avoid probate, minimize or eliminate Federal and State Estate taxes and protect their assets from the high cost of nursing care, if they become ill.