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I'm a beneficiary, can I start trust litigation?

Living trusts can play an important role in estate planning. Either revocable or non-revocable, these trusts are created during a San Francisco person's lifetime and can help avoid probate, making the time following his or her death less stressful. Unfortunately, not all living trusts are sound in nature, and trust litigation may be necessary.

A grantor -- the person who creates the trust -- must transfer property into the trust and establish a trustee. The trustee will manage the trust on the grantor's behalf, ensuring that property is properly managed and, if applicable, distributed after the grantor's death. It is possible to challenge these trusts, but a legal standing must first be established.

A common legal standing for challenging a trust is the competency -- or lack thereof -- of the grantor. Challengers must be able to demonstrate that the grantor was not competent or suffering from a mental defect when he or she executed the living trust, and as such was unable to understand the implications of his or her actions. This requires more proof than providing examples of behavior. Medical records of affidavits from health care providers are often used as proof.

Grantors may also feel forced into executing a living trust by undue influence. Unfortunately, it is often family members or close friends who exert this type of influence on grantors, forcing them to create a living trust that does not align with their true wishes. To argue this point, individuals must demonstrate that the grantor was vulnerable to undue influence and that the influencer had motive to do so.

Living trusts may also be challenged if the trustee charged with managing it breaches his or her fiduciary duty. Beneficiaries might be understandably upset to learn that a trustee is mishandling funds, and can file a challenge to intervene. However, challengers will need evidence that a trustee is mishandling the funds.

For most people in San Francisco, creating a living trust can be a smart and effective estate planning tool. However, there are certain situations in which it is necessary to pursue trust litigation. When a grantor's competency is in question or the beneficiaries funds are on the line, it is important to consider how challenging a trust may benefit everyone involved.

Source:, "How to Challenge a Living Trust," Stephanie Reid, accessed on Jan. 14, 2018

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