People sometimes hear about the negative circumstances that can arise if you don’t take the right steps when you are planning your estate. In a general sense, you may assume that informed individuals create trusts to address special circumstances to avoid these unwanted outcomes.
There is a lot of truth in this assumption. The ideal estate planning devices will vary on a case-by-case basis. You don’t have to go forward with the idea that a last will is your only choice unless you are very wealthy.
The above having been stated, trusts can’t completely wash away all of your concerns under all circumstances. With this in mind, let’s look at the question of whether or not it is possible to contest a trust in San Jose California.
Challenging a Will
You may have read an article somewhere on the Internet stating that probate avoidance is a good idea because your estate can be challenged if you use a will that must be probated. This is only half of the truth.
Yes, it is true that probate provides an open forum within which someone could challenge a last will. The probate court is charged with the responsibility of determining the validity of the will. Therefore, the process is set up to hear challenges that interested parties may want to bring before the court.
Challenging a Trust in San Jose California
The above does not mean that you cannot challenge the way that someone has planned his or her estate if this individual used a trust rather than a will. The terms of a trust can be challenged. However, distributions of assets through the terms of a trust are not subject to the probate process.
As a result, this built-in window of opportunity does not exist for someone who wants to challenge the terms of a trust. A person who was in this position would be forced to file the appropriate petition with the court, thereby requiring the contestant to initiate the court process instead of just appearing in court as part of an already active probate of a California Will.
This is clearly going to be a more complicated and potentially expensive endeavor.
Another half-truth that you may read on the Internet involves a no contest clause. You could include a clause in your trust that disinherits anyone who issues a legal challenge. Some people imply that this absolutely prevents challenges to trusts.
This is really not the case. If you wanted to, you could challenge the terms of a trust that contains a no contest clause by filing a petition with the court. However, you would be taking a big risk if you are named as a beneficiary.
Here are common reasons to challenge a trust:
• You believe the settlor (person who created the trust) was pressured into creating or signing the trust.
• You think the settlor was not competent when he or she signed the trust.
• The person who helped set up the trust will benefit from the trust.
If you lose, you would in fact be totally disinherited. However, it is possible that the court could find in your favor.
We also advise the you seek legal counsel before contesting a trust in San Jose California. The Santa Clara County Superior Court of California advises on their Probate Trusts website page “first read the trust carefully and talk to a lawyer experienced with trusts. If you challenge a trust and lose, you may lose your right to receive property from the trust.”