Contesting a trust in Florida may seem like a daunting process but if you are questioning the validity of a trust, it’s time to consult an attorney. Weidner Law has plenty of experience in contesting trusts in the state of Florida and would be happy to represent you in your case.
Interested in learning more about contesting a trust in Florida? Read on because today we’re covering contesting a trust 101.
Contesting a Trust in Florida
First thing’s first, what is a trust and what is the purpose of a trust?
A trust is designed to provide for the distribution of specific assets of the individual creating the trust. The individual writing the trust does not need to be deceased for the assets in the trust to be relinquished to the named individual/s. Each trust will specify which assets will be released to who and what criteria must be met for that release to take place. For example, John’s father sets up a trust that states that when John reaches 21 years old he will receive $5,000.
Why Do People Set Up Trusts?
In many circumstances, a trust is set up to control the distribution of assets and to avoid probate. This is not always the case, however, as you will remember from our article on revocable trusts in Florida.
Why Would You Contest a Trust?
There are a number of reasons why someone might contest a trust.
A Lack of Accounting
An accounting should be provided to beneficiaries but if it is not it can be requested by the court. If an accounting is provided, the trust beneficiaries also have the right to object to that accounting.
A Breach of Fiduciary Duty
When a trust is set up, a trustee is appointed to oversee the trust distribution. If a trustee is not fulfilling their duty their position as a trustee can be contested. The result of this contesting can have the trustee removed from their position as a trustee or they may end up being fined.
Removal of a Trustee
A trust can also be contested to remove a trustee from their position as a trustee for reasons other than failure to fulfill duty. For example, a trustee may no longer be of sound mind or they may have passed away.
Lack of Capacity
A trust can be contested if it’s suspected that the person writing the trust wrote it when they did not have the mental capacity to write such a document.
Defective Document
To be valid in the state of Florida, a trust must be executed under the policies and laws of Florida. If a trust is not executed properly it is considered a defective document and can be contested.
Undue Influence Claim
If the person writing the trust was forced, coerced, or threatened to write the trust then it can be contested.
Contesting the Trust
The first step in contesting a trust is to retain an attorney who can represent you. This is an important step because the contesting process can be difficult and an attorney can make the process much easier via their experience.
But what happens when you contest a trust? There are a few options
Settlement Outside of Court
When contesting a trust both parties can settle outside of court. This is referred to as a nonjudicial settlement agreement. If a settlement cannot be reached, either party may take the case to court.
Filing a Case in Court
If the case does go to court a court case must be filed with the Florida state probate court. The party filing the case with probate are responsible for providing all documentation and evidence for the court to review.
Making Changes to the Trust
If the court finds that changes in the trust are necessary a few things can happen:
- If administration costs cannot be justified by the trust property and the trust property contains less than $50,000, the trust may be terminated.
- The trust can be reformed so that it complies with Florida law AND reflects the original intention of the writer of the trust. Or the trust can be reformed to clarify any ambiguities.
- A trustee may be removed from the trust. If the trustee is guilty of a breach of fiduciary duty they may also have action taken against them.
Why Do You Need a Probate Attorney When Contesting a Trust in Florida?
As you can see above, there are a number of different paths you can go down when contesting a trust. Determining which path is the correct one for your case can in itself be troublesome. Even if you do manage to determine the cause for contesting the trust, you must be able to prove it in court. Not only that, but you will need to ensure that all paperwork is properly filed with the court system. Hiring an attorney will take the burden of each of these steps off your shoulders so that you don’t have to spend hours of your time (that you don’t have) chasing loose ends.
Looking For a Probate Attorney in Florida?
If you’re looking for a probate attorney in Florida who can help with contesting a trust in Florida, Weidner Law can help. Pick up the phone and dial 727-954-8752 to make an appointment today.
