Trust and Will Challenge

Trust and Will Challenge

I am contesting a Trust and Will that was executed in the decedent's state of residency (XXX) and the Trustee lives in another state (YYY), do I have to mount the contest in the Trustees state?


No State Specifics:

Sorry about the XXX and YYY but we can only provide general discussions, no state specific advice (laws can differ SUBSTANTIALLY from state to state and you really always need a local expert)....and that's not just because my nephew is a lawyer in XXX and my uncle in YYY.

Get an Expert:

If you are challenging (suing, contesting, trying to over-turn) a will and trust, you need to start off by hiring an experienced probate litigator. Most estate/probate attorneys are not litigators and most litigators have limited if any probate litigation experience. You don't want to try this alone.

Which State:

The trust and will, depending on the facts, might have situs in different states. Many estate planners routinely set up trusts in different states from where the grantor (settler, person setting up the trust) lives. This might be done because of income tax planning, state inheritance or estate tax planning, better rules on protecting assets, etc. Also, and your question wasn't specific about who set up the trust. If it is a typical revocable living trust which pours over into the will you mentioned, likely the action (court case, suit) might be brought together in one state, and most likely the state in which the decedent was domiciled at death. Domicile is a bit stronger and more permanent connection than merely "residing". Domicile is the place you generally intend to return to. But again, state law rules may differ. If the trust was set up by someone for the benefit of the decedent, the trust might be governed by the laws of a different state.

Some Issues to Consider:

You need to have an attorney review the trust and will. Many documents specify the state law which governs them. Many legal contracts will state that everyone involved has to agree to personal jurisdiction in the courts of a particular state (that the courts of that state can hear a case concerning them). You need to review with your attorney the facts of the trust. Where was it signed? Where were its assets? Where did the trustee perform trust functions? Where did it file income tax returns? When more than one state might have a connection to a case the rules which must be considered are often referred to as "conflict of laws" rules. Also, if in your specific case the trust/trustee could be sued in either state there could be an advantage to your starting a suit first in the state of your choosing. So hire a lawyer QUICK so you don't loose any tactical advantages (not to mention there are strict limits on when any suit can be filed which you don't want to miss). The will may be another matter and the suit might have to be bought in the state of domicile. Was the probate process already begun? In which state?

Book Plug:

The book The Complete Probate Guide (Shenkman, John Wiley & Sons, publisher) will give you some background on will challenges. The book The Complete Book of Trusts (Shenkman, John Wiley & Sons, publisher) will provide you with background on trusts and understanding some of the terms and issues noted above.

Get a Lawyer

Did we say that a few times already? You are dealing with rather technical issues. Get an expert to help you.

Our Consumer Webcasts and Blogs

Subscribe to our email list to receive information on consumer webcasts and blogs, for practical legal information in simple English, delivered to your inbox. For more professional driven information, please visit Shenkman Law to subscribe.

Ad Space