One of the goals of estate planning is ensuring that the tools used would be able to stand up to a legal challenge by a beneficiary or heir. Which estate planning tool is more difficult for a beneficiary to challenge, a will or a living trust?
It is generally considered more difficult to challenge a living trust than to contest a will. Why? A living trust allows for a continued involvement of the grantor, the person establishing a trust, than a will does. For example: A living trust requires that property be transferred to the trust in order to fund it, this act alone may serve as proof of competency in managing financial affairs.
Contesting a will and challenging a trust are both more difficult than many believe. To successfully contest a will, a person must prove that the testator, the person creating the will, either lacked the capacity to have the will drafted or they were subject to undue influence by a beneficiary. They may also challenge the legality of the will itself if it is suspected to be fraudulent.
These issues would also be used when it comes to challenging a trust. However, they are likely to be more difficult to prove with a trust document, since:
- A living trust is more likely to be set up by a trust attorney who can avoid the pitfalls of a ‘DIY’ will;
- A living trust has the continued participation from the grantor, making it more difficult to prove incapacitation;
- A living trust allows a successor trustee to be named, meaning they can take over should the grantor be found to be lacking capacity to make decisions involving the trust.
We would all like to believe that our friends and family will come together after we pass, and that a will will not be contested nor a trust challenged. Unfortunately, family issues or feeling slighted during an emotional time may lead to unexpected challenges upon the death of a loved one. Working with an estate planning attorney or trust attorney can help you determine the best estate planning tools for your family’s goals and needs, as well as take proactive measures to avoid contests and challenges.