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Trust Challenges

Florida Trust Requirements

In this section from his book, “Pankauski’s Probate Litigation: Top 10 Estate Mistakes Revealed”, John Pankauski explains what is included in a “simple” estate plan.

All your work for ’naught: how they will change your estate plan after you die.

Mistake: thinking that your estate plan cannot be changed, altered, or “busted up.”

Quite admirably, many of you reading this book and planning your estate do indeed care about “who gets what.” You care about leaving an inheritance to your loved ones and chosen beneficiaries; taking care of a spouse or relative, or perhaps grandchildren. You care about how your money and property – and their inheritances – may be used and abused, spent and squandered.

But here is probably the biggest, dirtiest secret of them all: it may not even matter.

After you’re dead, your kids and spouse may fight in probate court and seek to bust up your family trust and take their money, outright and directly. Then run.

This is trust-busting 101!

Wait! That trust which you spent so much time working with your trust lawyer designing – will be gone?!

Yes – that trust!

It may, indeed, be gone!

But – you spent so much time, and you spent so much

money on legal bills – discussing how the trust would be managed and administered for your kids and grandkids, for their education, healthcare, and support.

Yes, exactly – that trust!

But, wait – there’s more.

Those are just the people who you created a trust for – what about those people who feel entitled to an inheritance from you – but who received nothing?

Or, those who wanted you to leave them more money than you did?

Did you cut someone out after having them in a prior will? Maybe you disinherited a son or daughter? Or, perhaps, that no-good, deadbeat son-in-law?

Or, maybe you signed a codicil to your will and changed the executor. Maybe you left someone new in control.

Perhaps you reduced someone’s inheritance – like your adult children’ – and increased the inheritance for your third spouse.

You think there’s going to be probate litigation when you die? You betcha’!

Disgruntled or disinherited beneficiaries may sue your estate for undue influence, or claim that you had dementia when you cut them out of your estate plan, or when you changed your will or trust.

It happens all the time!

Courts and probate judges, on their own – and beneficiaries or loved ones – may even try to change the terms of your will or trust, through a new probate process called “reformation.”

Reformation is a legal process which lawyers have applied to contracts and deeds for years, and which is now being used for wills and trusts, to correct “mistakes.”

What kind of mistakes? Leave it to the trust litigators! They’ll figure it out!

These same persons may also seek to alter or change the terms of your trust through a process called “modification” – yes, even when your trust says that it can’t be changed and it’s “irrevocable,” it can still be modified.

Go figure.

How, you ask, can you change a trust when it’s irrevocable? Well, some states – including Florida – permit a probate court to change a trust when it’s deemed to be “in the best interests of the beneficiaries.”

How do you know when everything’s been done “in the best interests of the beneficiaries,” to decide whether to change or modify a trust?

Enter: the trust lawyers!

See you at trial!

But wait – there’s still more!

You may be able to modify or change a trust, if there are circumstances which were not anticipated by the creator of the trust.

This is another method by which a court can alter your irrevocable trust.

What a country!

Are there ways to anticipate an attack to your estate plan? Yes.

Are there ways to defend against a will challenge or a trust challenge? Absolutely.

Good defense means that you – you! – can go on the offense – now. There are things which you can do with your estate plan – right now – with your probate lawyer, to better defend your trust, will, and estate plan from an attack when you’re gone.

The truth is that, in many cases, your estate planning lawyer and you, the client, most likely know – or at least have a strong sense – that a will challenge may be coming after you’re gone. You know whether someone will try to attack your trust. You probably know, deep down inside, whether your adult children really don’t like your latest spouse, and whether they won’t get along when you’re dead.

Are there easy, simple, and even inexpensive things which you can do – now – to separate your beneficiaries financially? Yes. Can you create a simple plan to try to keep those people who are going to fight over your money and your estate apart? Yes.

There are ways of separating these people financially, and still leaving each of them a valuable inheritance in ways which can minimize or diffuse potential will challenges or estate litigation.

I don’t know if your estate planning lawyer will discuss potential probate litigation or will challenges with you. After all, such a discussion might leave you with the impression that having an estate plan isn’t worth the time or money to put it together. Why, the thinking might go, spend thousands of dollars on estate planning legal fees now, when the whole estate plan might blow up?

Pankauski’s Bottom Line: recognize that there may be litigation when you are gone and, if you care to, take steps to anticipate that and perhaps thwart it, now. There are distinct things which you can do now to keep your estate plan in place and “un-alterable” as possible.

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