Do Revocable Trusts Avoid Will Contests?
From Our “Ask a Question” Mailbag: “I am leaving one of my sons out of my Will, and I am worried that he will make trouble for my other children after my death by challenging my Will. I have been reading about Revocable Living Trusts. Do Revocable Trusts avoid Will Contests?”
Do Revocable Trusts avoid Will Contests?
In short, revocable trusts are an excellent tool for discouraging contests, but they do not guarantee that contests will not occur.
What Is a Revocable Trust?
A Revocable Trust is a trust that “can be revoked.” A revocable trust is the opposite of an irrevocable trust. If you form and fund an irrevocable trust, you can NEVER get the assets back. Alternatively, if you create and fund a revocable trust and decide you don’t like it, you can “revoke” it and take back the assets.
How Does a Revocable Discourage a Challenge?
In probate, the Will is filed and becomes public record. Further, once a Will is filed, the filing creates an automatic official system for an interested party to file a Will Contest.
Revocable Trusts avoid probate.
Avoiding probate means no public filing or readily available way to challenge the document. Now, a would-be challenger faces much more up-front costs and effort in bringing a challenge. If they hire an attorney, the retainer fee will likely be higher. If you are dealing with an irritating relative with limited assets, this barrier might prevent them from filing a baseless claim to cause trouble to their siblings.
Another reason a Revocable Trust will help prevent a Will Contest is that, generally, while a Will Contest focuses on whether you were competent or under undue influence the day you signed the Will. With an ongoing Revocable Trust where you are the trustee managing assets daily and writing checks from the trust account, the challenger is faced with proving that you were incapacitated or under undue influence each day you utilized the trust. Proving you were incapacitated on many days is a much higher barrier of proof than one day.
How Does a Revocable Trust Work?
You create the revocable trust, known as the “Grantor.” You “Grant” the power to the trustee to hold assets for the “Beneficiary.” With a revocable trust, you are the Grantor, the Trustee, and the Beneficiary.
So, you can move the deed to your house and enter the trust without giving up control or use of the house. AND, if you don’t like the trust, you can “revoke” it and take back the house.
In Conclusion, Do Revocable Trusts Avoid Will Contests?
The conclusion is that while most people form revocable living trusts to avoid probate, they have many other uses, including discouraging contests. They do not absolutely prevent contests, but they certainly make them more expensive and more difficult to prove.
If you want to know more, please read my article, Revocable Living Trusts: Everything You Need to Know.
I hope you found this short article about Do Revocable Trusts Avoid Will Contests. Contact us if you want to know more or have an estate that needs our help. Let our Probate and Estate Planning lawyers help walk you through what can be a confusing process. Feel free to contact our office for a free consultation. It’s All We Do:
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Peter Klenk, Esq. Pennsylvania Revocable Trust Lawyer, New Jersey Revocable Trust Attorney
Tags: Revocable Trust, Will Contest
