What Would Make a Trust Invalid?

A trust is a legal relationship whereby property is held by one person for the benefit of another. In order for a trust to be valid, the trust must have been created and funded according to the requirements of the law. If any of these conditions are not met, an interested party may be able to initiate a legal proceeding known as a “trust contest” to attempt to invalidate the trust.

Some of the most common reasons trusts are invalid include:

  • Legal formalities were not followed when executing the trust instrument.
  • The trust was created or modified through forgery or another type of fraud. 
  • The trust maker was not mentally competent when they created or modified the trust.
  • The trust was created or modified as a result of undue influence, duress, or coercion by a person with an interest in the trust assets. 

How do you invalidate a trust?

In order to contest a trust, you must file a petition in the probate court that outlines the reasons you believe the trust is invalid. To succeed in these proceedings, you must be able to point to evidence that supports your claim and provide witness testimony regarding this evidence. 

The first step in invalidating a trust is to consult with an experienced trust contest lawyer. A  knowledgeable professional will be able to review the situation and advise you whether you have a legal basis for invalidating the trust. If you proceed, your attorney will be able to handle every step of the trust contest process on your behalf.

To initiate the proceedings, your lawyer must file a contest petition in the county court where the trustee lives. In many cases, the trustee will have sent a Notice of Irrevocability under California  Probate Code 16061.7 that establishes firm deadlines for filing a trust contest with the court. It is essential to file your petition before that deadline to avoid missing the window to invalidate the trust.

Once the petition is filed, the next stage of the trust contest process is the investigation and discovery phase. During this stage, both sides will investigate their cases to find additional evidence supporting their arguments and trade this information with the other side. Many trust contests also involve a formal settlement negotiation, known as mediation, conducted by a probate judge. If you can’t reach an agreement during mediation, the case will go to trial and be decided by a probate judge.

What happens if a trust is invalid?

If the probate court determines that a trust is invalid, the trust assets will not be distributed according to the terms of the invalid trust instrument. When a previous valid trust existed, those terms will be followed instead. However, if no such document exists, the property will be allocated according to the terms of the decedent’s will or, if there is no will, state intestacy laws.

Who can void a trust?

Under California Probate Code §17200, a trustee or beneficiary of a trust may petition the court to determine the existence of the trust. This means that any potential, current, or previous beneficiary can file a petition to void a trust, as can a trustee or co-trustee. Additionally, if the trust is revocable, its creator can legally void the trust at any time. 

When should I contact a trust litigation attorney?

Because it is essential that trust contests be filed on time, you should contact a trust litigation attorney as soon as possible if you want to invalidate a trust. An experienced lawyer can evaluate your case and identify the most effective legal tools available to contest the trust. Invalidating a trust is a challenging process, and you will be much more likely to succeed with a knowledgeable trust litigation attorney on your side.

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Read More

The Trustee’s Guide to Trust Distributions
The Trustee’s Guide to Avoiding Trustee Removal
The Guide to Trustee Succession and Resignation

About RMO, LLP

RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.