What is Trust Litigation?

How to Avoid Trust Litigation

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
October 9, 2019

In this article, we will answer “How to avoid trust litigation” by examining what trust litigation is and laying out some of the steps  that will protect your trust from litigation.

What is Trust Litigation?

Having a Trust is a significant element of estate planning that allows you to determine who receives what from your estate and when they will receive it.  Generally, trusts allow more control and peace of mind than a will, so they are often a preferred means of estate planning. If there are any concerns or conflicts that arise around your trust, trust litigation may occur.  This process can be time consuming, expensive and stressful for your family and loved ones, so we will break down some of the things you can do to avoid litigation for your trust.  Feel free to reach out to us if you are looking for an estate planning attorney who can walk you through specifics.

For more on trusts, see our article “Should I Have a Trust or a Will?

What Causes Trust Litigation?

Trust litigation occurs when the court is needed to resolve any disputes over your trust.  Some of the most common causes of these disputes are around questions of the legality of the trust.  This can include but are not limited to questioning the sound mind of the trustor/deceased at the time of writing the trust, accusations of fund misuse by the trustee, or suspicion of manipulation or coercion upon the trustor/deceased.  If these conflicts reach the level where the family cannot agree, parties may seek legal representation to dispute the trust, which will begin trust litigation.

How to Avoid Trust Litigation

How to write a trust

The first step to avoid trust litigation is to make sure you are working directly with a trustworthy estate planning lawyer.  Relaying your concerns to the attorney will give you some peace of mind that they are aware of your situation and will guide you through the process.  There are some personal checks you can make to assure that your trust is as secure as possible.  

  • Communication is Key. Making sure that your heirs are aware of their standing is a strong way to ensure that they are not blindsided or in contest of their future inheritance. This will also create a witness who can back up that the claims in the trust truly reflect your wishes.
  • Clarity within the Trust. Working with your attorney to assure that the terminology is clear and concise within the trust is important.  Complex legal terminology or vague language can cause confusion between the trustee and the inheritors.  Making sure that your desires are clearly stated is a vital element in your estate planning process.
  • Trust the Trustee. Choosing your trustee is important in ensuring the proper execution of your trust.  The trustee must be someone you believe will be honest and transparent with the process.  They should also be someone you know will be able to properly understand and communicate your intentions as stated in the trust.  If you do not feel comfortable handing this important role to someone you know personally, you can hire an outside trustee.  If this is something you’re interested in or you are unsure who among your family to give the role to, you should consult your estate planning attorney.
  • Anticipate Conflicts. If there are elements of your trust that you believe could cause disputes, there are steps that your attorney can take to assure these elements are clear and protected.  These situations can include a potentially-unexpected decision such as disinheriting a family member or deciding who to leave a special, cherished possession to.
  • Keep your trust updated. If the estate or family situation changes, be sure to revisit and update your trust to reflect the new information and update any documents.  Inconsistencies could be significant fuel to force litigation.

These are just some of the steps you can take to ensure that your trust does not enter litigation.  The legal process is complex and there are several unique circumstances that you may not have considered when originally planning your estate.

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