Contesting a Living Trust

While all estate plans are supposed to take care of a person’s final affairs, the way in which that is achieved depends on the type of instrument used to protect and distribute the assets in question. For instance, many people choose to create living trusts, which allow individuals to hold their own property in trust, until after they pass away, at which time, the assets will automatically pass to their listed beneficiaries. In this way, a person’s loved ones can avoid the probate process and collect their inheritances more quickly than would be possible if the property was distributed via a will or another type of estate planning instrument.

It is still possible for a person’s heirs or beneficiaries to contest a trust, so if you need help establishing a trust that will be more difficult to contest, or you believe a loved one was taken advantage of or did not have the mental capacity to understand the nature of his/her actions when establishing a trust, you need the advice of an experienced contested estates lawyer who can explain your legal options.

Creating a Living Trust

A living trust is established when a person, who is often referred to as the settlor or trustor, decides to give up control of his/her property by placing it in a trust and designating at least one beneficiary to receive those assets after the settlor’s death. These types of trusts will only be considered valid if:

● The settlor intended to create the trust relationship and to give up certain assets for the beneficiary’s use; and
● The settlor transfers his/her property into the trust.

When these elements are fulfilled it can be difficult for heirs and beneficiaries to contest the resulting trust, although it is still possible in certain cases.

Contesting a Trust

Once a living trust has been established and the settlor’s property has been transferred into it, the assets it contains will no longer be considered to belong to the settlor, but will actually belong to the trust until the settlor’s death. Like standard wills, trusts will only be enforced if the settlor had the mental capacity to initiate the trust and was not unduly influenced in any way during its creation. For this reason, if an heir or beneficiary can demonstrate a settlor had diminished mental capacity and so was incapable of establishing a trust on his/her own, or was unduly influenced by a third party, that person can request the trust be dissolved or altered. It is also possible to contest a trust when there is evidence that:

• ● The trust was established as a result of fraud;
• ● The trust was properly revoked by the settlor; or
• ● The settlor did not comply with the proper legal requirements when executing the trust.

As estate planning instruments, wills and trusts have several similarities, including how they are contested, however, there is one major difference between the two: trusts, unlike wills, become effective as soon as they are created and not upon the settlor’s death. Similar to wills, living trusts can be amended and changed by the settlor prior to his/her death.

Illinois Living Trust and Contested Estates Attorney

Call the offices of Orlowsky & Wilson, Ltd. Attorneys at Law today at 847-325-5559, or use our online contact form to speak with an experienced contested estates attorney who can address your questions and concerns.