Did you know there is an old saying among estate planning attorneys? In short, it is,“Where there’s a will, there’s a relative.” The implication is that people come out of the woodwork in the hopes of landing an inheritance at the death of a loved one.
We know it may seem a bit jaded, but unfortunately conflict can arise at the time of one’s passing, especially if lucrative assets are believed to have been left behind. For example, the family of an aging person may be at odds with his or her current spouse; children from a previous marriage may think they are getting short-changed; an elderly person may struggle with memory loss and be vulnerable to the undue influence of a bad actor.
There are many reasons why a disgruntled family member might contest a will. While no estate plan can completely ensure against contestability, a revocable trust is much harder to successfully challenge. Let us share a few of the reasons why.
A revocable trust is a legal planning vehicle through which you may appoint someone to be responsible for managing your property. At the time of death, your designated “successor trustee” continues to manage, govern, and ultimately distribute your assets held in trust. Once created, income can be earned on the assets placed within it and trust provisions can be adjusted for any number of reasons.
Its basic design makes it difficult to challenge as a revocable trust will avoid probate. Both a last will and testament and a revocable trust are inheritance plans. A will takes effect after you pass away when a petition for probate is filed with the appropriate court. In contrast, a revocable trust is effective as soon as it is signed and assets are funded into it – meaning, while you are alive.
It is true that wills can be changed throughout one’s lifetime, but the final version is the one that controls after death. If it is altered during a person’s later years, or moments, it could be subject to a legal dispute.
On the other hand, an argument can be made that revocable trusts require continuing involvement. A history of moving property in or out of trust, and making amendments or revisions, can be seen as evidence that the trustor was mentally capable when executing actions within the agreement.
It would be difficult, for example, to make a legal claim that the person who established a revocable trust twenty years before passing, and made numerous investment decisions during the intervening years, was mentally incompetent or was the victim of a forged signature on the trust agreement. Further, a trust is a private document and, at death, is much more difficult to access than a will.
We know that this article may raise more questions than it answers for you. Do not wait to schedule a meeting with an attorney on our team to discuss your own estate planning needs.