Trusts 101 - Can You Contest A Trust?

In a large majority of cases, estate plans consist of trusts. This is understandable, as trusts are powerful legal tools that allow beneficiaries asset protection and help them avoid the hassle of going through probate. 

Yet, just like anything else in life, they’re not 100% foolproof, most often due to the fallibility of humans. For instance, a trustee may mismanage the trust, in which case you have the right to contest it. 

To help you make the best choices, we’ll take a closer look at trusts in general, the basics of how to contest a trust, and specific situations when it may be your best course of action.

Most Commonly Used Trusts

Although often lumped together, trusts come in many different varieties - all with their own purpose. In fact, effective estate plans rarely leverage just a single type of trust.

Here are some of the most common kinds used in Florida:

Revocable living trust

This trust is created while the grantor is still alive. Grantors are allowed great flexibility as they can amend or revoke the trust if they wish. Upon death, the assets are passed on to the beneficiaries without going to probate court.

Irrevocable living trust

As the name suggests, an irrevocable living trust is created while the grantor is still alive, but grantors themselves can’t revoke or amend it. This is because the assets put into the trust become the property of the trust itself, and as such, they’re protected from probate and taxes.

Testamentary trusts

These trusts are an integral part of a person’s will, and won’t be effective until the trust’s creator passes away. This type is often used if someone chooses to leave their assets to an individual but wants them to gain access to the assets only once certain conditions are met (such as the individual reaching legal age

Why Contest A Trust?

If you’re wondering how to contest a trust, you should first be familiar with reasons why you would even need to.do so. 

These are the biggest factors why people decide on such an action:



Undue influence on the grantor

If the grantor was threatened, under duress, or coerced at the time of creating the trust, they are considered to be under undue influence. This fact is enough to prove the grantor’s wishes were overruled and is good ground for contesting a trust.

Grantor’s lack of capacity

According to the law, only mentally competent individuals are allowed to create trusts. 

Generally speaking, the grantor is considered to have lacked the requisite mental capacity if they possessed no understanding of: 

• terms and conditions of the trust
• which property will end up in the trust
• which individuals stand to benefit from the trust
• method the trust will use to manage their property

This commonly happens if the grantor was suffering from an illness such as Alzheimer’s or dementia, or was under the influence of prescription medications.

Illegitimate execution of the trust 

There are different rules in Florida governing the execution of trusts. For instance, trusts need to be signed by the grantor and two witnesses (who are also required to overlook the grantor signing the trust documents). Lastly, all the signatures must be signed in blue ink, at the foot of the documents.

Trustee mismanagement

Trustees have a strict set of fiduciary duties, which if broken, are solid grounds for contesting the trust. The law mandates that trustees are forbidden from acting in self-beneficial ways and limited to acting in service of the beneficiaries.

Some examples of trustee mismanagement include:

• Poor management of the assets in the trust
• Poor accounting of the assets
• Failure to protect the trust against external claims
• Withdrawing assets from the trusts in the form of loans for personal affairs

Who Can Contest The Trust

In Florida, only those who have trust standing are allowed to contest the trust. In other words, you must have a direct interest in the trust (or a prior trust), the grantor, or the trustee. This typically includes family members of the grantor or any individuals named in a prior trust.

How To Contest A Trust

To increase your chances of success, it’s best to hire an estate attorney. Learning how to contest a trust on your own is close to impossible due to the inherent complexity of the entire process. 

On a basic level, you need to know that contesting a trust is similar to contesting a will. In other words, you can’t challenge a trust because you’re unsatisfied with any of the terms. So if you’re asking how to contest a trust because you were left out, we’ve got bad news - it’s simply not a valid reason to challenge the grantor’s wishes. 

Nevertheless, the legal reasons outlined above are allowable under Florida law, which governs pretty much everything in regard to estates and by extension, wills and trusts.

Your attorney will be helpful here, as they’ll be able to review all the facts of the case and determine whether you have legal grounds to contest a trust. Equally important, they will try to assist you in reaching a resolution that’s beneficial to all parties involved.

For instance, after reviewing all the documentation, an attorney might suggest settling to avoid going to court. This can be achieved if all interested parties agree on a non-judicial settlement agreement, which is handled outside of the court. 

Otherwise, your attorney can push for litigation if you have enough evidence and documentation to support your claim. In this case, the court will rule on whether any changes are to be made to the trust.

Contest a trust with Law Offices Of Mary E. King

If you have solid reasons that your rights are being violated and you’re forced to contest a will, we can aid you. Here at Law Offices Of Mary E. King, we helped many individuals assert their rights and successfully challenge unfavorable trusts and wills. 

Although the path ahead is treacherous, it will be a lot easier with experienced attorneys on your side. 

Use our contact form or dial 941-906-7585 to schedule a free case evaluation. We’ll review all documentation and ascertain whether you have a fighting chance.

Note: 

The information in this blog post is for reference only and not legal advice. As such, you should not make legal decisions based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.