When Can You Attack a Florida Revocable Trust? What trust lawyers & beneficiaries need to know about objecting to a living trust during the life of the creator

Can you object to a Florida revocable trust while the trust creator is alive? Or, you could ask the question a different way:  in Florida trust litigation, when can you file a trust contest or trust challenge about a revocable trust or living trust?  Must you wait until the creator of the trust dies, or can you attack a living trust or an amendment during the creator’s life? 

Everyone is Using Revocable Trusts in Florida

• Ask any estate planning attorney in Florida and they will tell you that a revocable trust, or a living trust, sometimes called a revocable living trust, is a common part of people’s estate plans
• Florida probate lawyers know that there are 4 main estate planning documents that they use, and which clients want, when they write an estate plan:
• 1) a last will
• 2) a revocable trust
• 3) a power of attorney or Florida POA
• 4) health care/guardianship/medical documents
• The revocable trust can be used to protect & safeguard, and manage your money and property during your life, such as if you are incapacitated or if you lose capacity, or become INCOMPETENT, and can’t manage your affairs, or during a Florida guardianship
• But a living trust is not just for people who have dementia or Alzheimer’s or who need a Delray Beach guardianship
• After you die, the trust which you create can pass out inheritances just like a will
• While wills are required to be filed in the county where you reside, your last will will become a public document for the entire world to read
• Just witness that David Bowie just passed away and his will was filed in New York and has already been written about.  You can read more about David Bowie’s last will and his $100 Million estate by clicking on this link: http://www.nytimes.com/2016/01/30/nyregion/david-bowies-will-splits-estate-said-to-be-worth-100-million.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=mini-moth&region=top-stories-below&WT.nav=top-stories-below

When Can You Bring a Trust Contest in Florida?

• The general rule in Florida trust litigation is that you can’t bring a trust contest or trust lawsuit attacking the validity of a revocable trust or an amendment to a living trust until the settlor, or grantor, trust creator dies

• Put another way, if you are an “interested person” to a Boca Raton trust, you can’t file a trust contest during the trust creator’s life.  You have to wait and file your trust challenge Delray Beach when the trust creator dies
• But, if you read the Florida Trust Code carefully, you will see that you can contest a trust during the life of the trust creator under certain limited circumstances
• Ask your Florida trust attorney about Florida Statute 736.0207 which you can read at this link:  http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0736/Sections/0736.0207.html
• But be careful.
• How long do you have to file a trust contest Florida?
• Well you should read Florida Trust Code section 736.0604: http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0736/Sections/0736.0604.html
• So, when can a revocable trust be challenged during life?
• Consider this scenario:  your aunt is rich and lives in Palm Beach where she has an estate plan with $10 Million in her revocable trust.  You are a trust beneficiary for $1 Million until your aunt’s trust is changed one day with a trust amendment.  Your aunt starts dating a tennis pro from Boca Raton who convinces her to cut  you out of her trust.
• A trust amendment is created at the suggestion of your rich aunt’s tennis pro.  The tennis pro drives your aunto to his attorney who has her sign the trust amendment cutting you out of your inheritance.  The trust amendment also names the tennis pro as the new trustee.  All of this happens at a time when your aunt is suffering from dementia and Alzheimer’s, memory loss and forgetfulness.
• A guardianship proceeding is filed in West Palm Beach and your aunt is judged to be incapacitated or incompetent and a guardian is appointed to look out for her.
• Do you have the ability to go into Florida guardianship court to object to the trustamendment?
• Did your aunt’s revocable trust, by its terms, become irrevocable because she is incapacitated?
• What does the Florida trust law, Section 736.0207 mean when it says that a trust contest or trust challenge may not be commenced or filed until the trust becomes irrevocable by its terms or by the settlor’s death?