Trust Litigation

What is Trust Litigation?

Trust litigation is similar to probate litigation, except that it involves challenging a trust or the administration of a trust rather than a will. Generally, there are two types of trust challenges: challenges to the validity of the trust and challenges to the trustee or trustees.

Challenging the Validity of a Trust

The exact requirements for creating a valid trust and the grounds for challenging the validity of a trust vary somewhat from one state to another. Generally, the grounds fall into one of these categories:
●  The form or execution of the trust doesn’t meet legal requirements, rendering the trust invalid
●  The creator of the trust lacked capacity to execute legal documents at the time the trust was created–generally due to mental illness or a cognitive disorder
●  The creator of the trust did not voluntarily execute the documents–perhaps through fraud, or force, or undue influence

What Happens When a Trust is Invalid?

When a court finds that a trust is invalid, the terms of the trust are not carried out. What happens to the property in the trust depends on the circumstances. The property may revert to the grantor, if the grantor is alive. More often, a trust is challenged after the grantor’s death. In that situation, the property may become part of the grantor’s estate, and be distributed according to the terms of the will or under the state’s law of intestate succession.

The best source of information about what will happen when a trust is invalidated in your state is an experienced trust litigation lawyer.

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Challenges to the Trustee

One type of challenge involves the trustee’s fitness for the role. This may be on technical grounds, such as the trustee being disqualified by some aspect of state law. For example, in some states a person with a felony conviction is prohibited by law from serving as a trustee. Or, it may be because the trustee lacks the requisite skills to such a degree that the trust is not being properly administered.

In either situation, the remedy is typically to remove the trustee. If the grantor named a successor trustee, then that person would step into the role if they were willing and able to serve. If no successor trustee has been appointed or the chosen successor is unable or unwilling to serve, the court will appoint an alternate trustee.

Under more serious circumstances, beneficiaries may have direct claims against the trustee. For instance, if the trustee has misappropriated trust property for their own benefit, they will likely be liable for the resulting harm to the beneficiaries.

Start with a Trust Litigation Attorney

Often, beneficiaries of a trust may be dissatisfied with the terms of the trust or with the way the trustee is handling certain aspects of the trust. That alone generally won’t be grounds for trust litigation. 

If the trust itself is flawed, the trustee is ineligible or is failing to carry out their duties, or the trustee has violated the terms of the trust, it may be time to consider litigation. The best source of information about your options and the pros and cons of pursuing litigation is an experienced trust litigation lawyer.

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