Most people have heard about will challenges, but many wonder if it is possible to contest a trust in Ashland Kentucky. Let’s look at the answer to this question.
Will Challenges
Before we get into trusts, let’s look at will challenges first. When you use a last will to arrange for the transfer of assets that were in your personal possession when you died, the executor must admit the will to probate.
The way that the process is set up allows for will challenges. The probate court is charged with the responsibility of determining the validity of the will. As a result, anyone who wanted to contest the will could come forward during probate and present an argument before the court.
Because of the existence of probate, there is a ready-made forum for anyone who wanted to challenge the will.
This being stated, the person contesting the will must present a truly valid argument using acceptable grounds. These would include the incapacity of the testator, fraud, undue coercion, and improper execution.
Challenging a Trust
When you create a trust such as a revocable living trust, the point is to facilitate asset transfers to the beneficiaries outside of probate. Therefore, the probate court would not be a factor if you have created a living trust to arrange for the transfer of financial assets.
Some people jump to conclusions when they hear this. They assume that the removal of the probate process removes any possibility of a challenge.
This is really not the case. Yes, it is true that there is no ready-made forum within which a challenge can be presented. However, a trust can be challenged through the initiation of a lawsuit.
It is more difficult and potentially costly to challenge a trust, but it can be done.
No-Contest Clauses
There are those who contend that you can make it impossible to successfully challenge a trust by adding a no-contest clause. You could add such a clause, but it does not make a successful challenge impossible.
What is a no contest clause? In this context it is a clause that completely disinherits any beneficiary of the trust who challenges the terms.
If you challenged the terms of a trust that named you as the beneficiary, and there was a no-contest clause, you would be disinherited — assuming you did not win your lawsuit.
However, you may in fact win the suit. This is why it is not really accurate when people say that you can prevent a challenge to a trust by adding a no-contest clause.
Such a clause would definitely serve as a deterrent, because it is risky for a beneficiary to present a challenge, but it doesn’t eliminate the possibility altogether.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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