How to Contest a Revocable Family Trust
A revocable family trust (also known as a revocable living trust) is designed to ensure that certain members of the family can access the income from assets included in the trust as well as the assets themselves in certain situations. There are instances in which an interested party (a family member in most cases) concludes that a particular revocable family trust is not legally established (or functioning in a lawful manner). A procedure exists through which that individual is able to contest a revocable family trust.
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Instructions
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Obtain from the Clerk of the Court (probate division) a copy of a standard form petition used to challenge the validity of a trust. Challenges to trusts, wills and related matters are pursued in probate court.
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Prepare a petition to set aside trust. Include the specific reason or reasons why you believe the trust should be set aside. Common reasons to contest a revocable family trust include: the grantor (person who created the trust) lacked capacity to create the trust, the grantor fraudulently was induced to create the trust or the trust agreement does not conform to the law.
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File the trust petition with the Clerk of the Court.
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Request that the Clerk of the Court have the sheriff serve a copy of the petition (and a summons) on all interested parties. Interested parties include the grantor, the trustee and any and all beneficiaries of the trust. A summons is a court document outlining what the interested parties named in the case must do in response to the contentions made in the petition.
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Obtain a hearing date from the Clerk of the Court (or from the assigned judge's administrative assistant).
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Notify the interested parties of the date and time of the hearing.
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Attend the hearing and present the basic elements of your case. If the judge believes there is at least some merit to your contentions, the case will be set on a schedule heading to a trial on the issues you raise.
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Present evidence and witnesses at the trial to support your contentions as to why the revocable family trust should be set aside by the court.
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Tips & Warnings
Pursuing a case to contest a revocable family trust is a very complex legal and procedural matter. Your interests (and rights) are best protected if you enlist the services of an experienced probate lawyer who specializes in trusts.
Make certain that the contentions you make in your petition to set aside trust are accurate and supported by evidence to the best of your knowledge and belief. If you fail to exercise due diligence and make allegations that are not supported by facts, you face serious sanctions by the court. These include paying the attorney fees of all interested parties who are brought into the case.
