Just because you prepared a living trust to keep your loved ones out of probate court, doesn’t guarantee they will stay out of court.
Remember that even though you have the right to distribute your assets anyway you choose, gifting your assets unevenly or disinheriting a family member could invite a legal contest, unless you take extra precaution to stamp out any potential fires before they start.
Your living trust (or will) can be questioned not only by angry family members but also by those who legitimately question the circumstances surrounding the creation and signing of your documents.
Although property is easily transferred to beneficiaries through living trusts, some trusts end up in court for a judge to determine the validity of the trust.
To increase the odds that your intentions aren’t debated in a courtroom, keep in mind the following points:
• Will anyone question your mental capacity at the time you had your trust prepared and signed? In summary, California Probate Code Section 811(a) defines a person lacking the capacity to execute a will or trust as someone who either lacks alertness or attention, lacks the ability to process information, a deficit in the thought process or inappropriate moods. Taking any mind altering medications, such as strong painkillers at the time you had your trust prepared or when you signed your documents can be a factor in questioning your mental capacity.
• Could anyone question that you were being influenced? Were your documents prepared and signed quickly, for example in a hospital?
• Was the creation and signing of your document a secret?
• Is the person(s) who is benefiting the most from your estate, the one who helped you have the documents created and signed?
Don’t give someone the ammunition to attack your mental capacity if you are mentally capable. As varied as the dynamics of different families are, so are the ways varied that I see people handle the transparency of their estate plans. I personally think it’s a good idea to write a carefully thought out and tactful letter explaining why some beneficiaries will receive more than others. Whether or not it avoids any conflict, it should help to settle any possible legal disputes.
Think about these potential issues as you are creating and signing these documents. The best way to avoid these types of conflict is to prepare your documents ahead of time. Stop waiting until the last minute to get your affairs in order.