Avoiding Future Trust or Will Contests
by Dick McEntyre and Chris von der Lieth, Attorneys at Law
Published - 11/27/20 - 11:55 AM | 1881 views | 2 2 comments | 38 38 recommendations | email to a friend | print

Although most trusts and wills contain a “no contest clause,” disgruntled persons, especially one’s children, who feel they were improperly left out of a decedent’s disposition of property, may still vigorously challenge the provisions of the decedent’s document(s) in question following the deceased person’s death. The grounds for such a challenge can be: (1) alleged fraud or undue influence exacted by the taker under the trust or will; (2) purported lack of mental capacity of the trustor or testator resulting in the estate going to the “wrong beneficiary”; or (3) especially in the instance of children, when a child believes he or she was inadvertently left out (“forgotten”) of the trust or will. Such challenges can slow up the administration of the trust or estate, cause anxiety, and be very costly to all parties involved.

To help avoid such a future challenge, when a trustor of a trust or the testator of a will believes there may be future discontent among his or her children, he or she should strongly consider having a before-the-fact meeting with the children and advise them of his or her intentions regarding the future disposition of the trust and/or estate. While such a meeting may be uncomfortable, in the long run it could be beneficial, since it may well allow the trustor or testator to die in peace, knowing that there should be no challenge to his or her estate planning disposition, with its attendant delays, costs, and anxieties. Further, such a meeting may provide for a reconciliation of those presently estranged children. Another idea which may be helpful is making a videotape of the trustor’s or testator’s signing of the trust or will along with such trustor or testator making a statement of why he or she is making the disposition in question.

The above statements are not to be taken as legal advice for the reader’s particular situation. Richard F. McEntyre practices law in the area of estate planning and administration, having served the San Diego community as a lawyer for over 40 years. Chris von der Lieth is Dick’s associate lawyer, having worked with Dick for over 6 years. Affordable rates. Highest quality services. House calls available. Our office is conveniently located at 2615 Camino Del Rio South, Suite 101 (in Mission Valley just east of Bully’s restaurant) (Telephone (619) 221-0279) www.richardfmcentyre.com.

 

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Robert Burns
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November 28, 2020
I agree. Legal drafting can only be so good. Beyond that, conscious estate planning and good "bedside manner" are key to minimizing family legal conflict. Personally, I find disinheritance, as opposed to, conditional or supervised inheritance, to be within the realm of unconscionable.
Geoffrey Sadler
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November 30, 2020
Excellent article. These contests can be a real problem for families, no doubt about it. I have found some solutions to help avoid such conflicts; tied into Proposition 58 and Prop 13 tax breaks, for California property owners, looking to work around the new Proposition 19 property tax obstacle that forces homeowners to move into inherited property within one year or lose the "Parent to Child Exclusion". This is a stunning loss of property tax relief.

It seems still possible to take advantage of property tax transfer, from parents, with the ability to keep parents property taxes while avoiding property tax reassessment of course. Despite Prop 19, we can still transfer parents property taxes when inheriting property - bottom line, inheriting parents property taxes at a low base rate the way Prop 13 was intended.

Firms like https://cloanc.com/california-proposition-58/ can help solve estate conflicts between beneficiaries; making it possible for us to buyout siblings with a "sibling to sibling property transfer", siblings who want to sell their inherited property shares, while allowing us to keep the same mutually inherited property from parents - with a trust loan, at that low base rate. As long as we get approved for Prop 58, and can avoid property tax reassessment, exactly as the California State Board of Equalization explains, at https://www.boe.ca.gov/proptaxes/faqs/propositions58.htm Or at a blog like https://propertytaxtransfertrusts.com/ As long as everyone gets the cash they were expecting with a trust loan, and/or end up with a nice low property tax base... everyone ends up in a win-win happy sibling scenario. As long as the will contest can be resolved to some degree, and communications between siblings doesn't completely fall part.
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