A revocable trust, also known as a living trust, is an instrument used to manage the assets of the grantor during his lifetime and then distribute those assets upon his death. A revocable trust varies from an irrevocable trust because the grantor may alter the revocable trust during his lifetime as long as he is not incapacitated.
Common Trust Terms
The key parties in a trust arrangement include the grantor, or creator of the trust, the beneficiaries and the trustee. The beneficiaries are the individuals who stand to benefit from the trust after the grantor's death, and the trustee is the individual or institution charged with managing the trust assets. The grantor may withdraw assets from the trust or alter the trust at any time during his life. If the grantor becomes incapacitated, the trustee will manage all of the grantor's bills and handle all investment decisions related to the property in the trust.
Advantages of a Revocable Trust
One of the advantages of a revocable trust is that the grantor may appoint unrelated, out-of-state trustees to administer the trust. However, the main advantage of a revocable trust is that it allows the assets of the deceased grantor to avoid the state probate process. Avoiding probate can provide major advantages in terms of cost savings and expediency, depending on your jurisdiction. You may not challenge a revocable trust until the grantor is dead or incapacitated.
Grounds to Challenge
The grounds necessary to challenge a revocable trust in most jurisdictions include lack of capacity of the grantor at the time the trust was created, fraud, duress, mistake or undue influence. To challenge a revocable trust, you must be a beneficiary of the trust. Before you formally challenge the trust, you must gather evidence tending to prove one of the legitimate causes of action.
Draft a complaint stating the facts about the trust, why you have standing as a beneficiary and a description of your legal theory about why the trust should not be enforced. Check your local rules of court procedure to make sure your complaint complies. File your complaint with the appropriate probate court in your jurisdiction, and pay the requisite filing fee. After you have filed your complaint, you can begin the discovery process and prepare for trial.
- Law Office of Scott Soady: Challenging a Living Trust in Probate Court in San Diego
- American Bar Association: Revocable Trusts
- Gomel Davis: Advantages and Disadvantages of a Revocable “Living” Trust
- Missouri Bar: What Is a Revocable Living Trust?
- The Florida Bar: The Revocable Trust in Florida Pamphlet
- Law Offices of Glenn Mednick: Will and Trust Contests in the Real World
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