Number 5 Reason For Living Trusts: Avoiding a Will Contest
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Ed. Note: Older adults have planned many aspects of retirement, but failed to create an estate plan. Explore how living trusts can help avoid a will contest.
By Michael P. Pancheri, Esq.
Reason #5: Avoiding a Will Contest. It is true that a will is far more likely to be contested than a revocable living trust. That’s because a will goes into effect only when a person dies, whereas a revocable living trust goes into effect as soon as the trust instrument is signed and generally lasts for some time after the owner’s death. If you’re going to contest a will, all you have to do is prove that the testator was either incompetent or under undue influence at the precise moment the will was signed. To contest a revocable living trust, you have to prove that the grantor was incompetent or under undue influence not only when the trust instrument was signed, but also when each property was transferred to the trust, when each investment decision was made, and when each and every distribution was made to the owner or anyone else. That is virtually impossible to do.
Moreover, it costs nothing to contest a will. All a disgruntled family member has to do is object when the will is presented for probate, then hire an attorney on a contingency fee basis, and wait for the final outcome. A disgruntled family member has nothing to lose. On the other hand, contesting a revocable living trust generally involves a substantial commitment of time and money. Whereas a will contest is heard in probate court, a revocable living trust contest is heard in civil court where there are substantial filing fees and formal procedures that have to be followed.
Still, some people argue that will contests are seldom successful, so why bother with a revocable living trust? The answer is threefold: First, a will contest puts a screeching halt on the settlement of an estate. Most will contests take a minimum of two or more years to complete and, during that period, no distributions will be made to anyone. Second, defending a will contest involves lots of attorney time that results in large attorneys’ fees. Even unsuccessful will contests end up costing $50,000 or more in attorney’s fees. Third, many will contests are settled before they ever get to court. In that case, the estate will be further diminished by the amount of the settlement. In the final analysis, will contests are time consuming and expensive. The best way to avoid them is through a revocable living trust.
Link to the series:
Number 1 Reason For Living Trusts: Protect Property for Beneficiaries
Number 2 Reason For Living Trusts: Reduce or Eliminate Estate Taxes
Number 3 Reason For Living Trusts: Managing Property upon Incapacity
Number 4 Reason For Living Trusts: Avoid Probate
Number 5 Reason For Living Trusts: Avoiding a Will Contest
Number 6 Reason For Living Trusts: Secure Your Privacy
Attorney Michael P. Pancheri is the founder and CEO of the Living Trust Network. You may contact him by email at info@livingtrustnetwork.com. You may also contact him at the Living Trust Network's web site at http://www.livingtrustnetwork.com
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