Challenging a Will Or Trust

San Diego Estate Planning Attorney

Video Transcript:

Vincent Casiano: 

The value of the attorney is being able to explain your options and what the consequences of different decisions are.

Rob Rosenthal: 

So are wills and trusts set in stone? Or, can they be challenged? And, how do you do that? We're gonna find out right now, 'cause that's what we're going To Ask The Lawyer on this episode. My guest is California attorney, Vincent Casiano. I wanna remind you right off the top, if you wanna ask Vinny questions about your situation, just go to askthelawyers.com, click the button at the top that says Ask a Lawyer, it'll walk you right through the very simple process. Or, of course, you can call the phone number you'll see on the screen during our conversation. Vinny, good to see you again. Thank you for making some time to help us out.

Vinny Casiano: 

Always great to be with you, Rob.

Rob Rosenthal: 

So, let's talk. We're talking about the challenging a will or a trust, how easy is that to do and what are some of the circumstances somebody might challenge that?

Vinny Casiano: 

Well, that's a very good and actually timely question right now. In California, we have all sorts of laws that dictate when you have to challenge them, and whether or not you'll be successful is ultimately up to the judge, for the most part. It's gonna be a bench trial when you're talking about wills and trusts, unless there can be allegations of elder abuse and certain issues can be actually dealt with by a jury, I should say. But when it comes to wills and trusts, there are specific time frames that you have to be concerned with. After somebody passes away, if you have a trust, there's a notice that goes out, it's called a Notice of Trust Administration, and that happens when the trust becomes irrevocable. That means somebody has died, the successor trustee, which is usually the most trusted child, is obligated within 60 days to send out a notice and to offer, if they don't already, send a copy of the trust to anybody that's mentioned in the trust. And there's language in that notice that says you have 120 days from the receipt of this to object, and if you don't, it's over.

Rob Rosenthal: 

Okay. And what form does that objection have to take?

Vinny Casiano: 

You actually have to file a lawsuit. And so you have to file a lawsuit objecting to the trust, and then the various strategies or the various causes of action or allegations that you have can vary. It can vary from, "That's not my parent's signature on that document," or, most frequently, "They were unduly influenced to do what they did, they gave everything to my brother." The other part would be that basically they did not have the requisite capacity to make the changes they did or to create the document, and requisite capacity ranges from, is it just a will? Or, is it a trust? Or, if they first did the trust and they did have the capacity to do it, if they just amended the trust and changed who is getting what, what capacity did they need to do that?

Vinny Casiano: 

But very important, if I could just go back here. Starting January 1st of this year, what I said before about, "Okay, Mom and Dad died and the trust became irrevocable," that is when the beneficiaries of the trust, had a right to a copy of the trust as well as to accountings on what the trustee is doing with the property. As of January 1st, it changed. If the people that have the power to revoke the trust become incapacitated, so when we're talking about a normal situation, Mom and Dad here, they both become incapacitated or one dies and the other becomes incapacitated, even though technically they still have the ability to revoke that trust if they had capacity, now that they don't, the law requires the successor trustee to put out a notice to all of the beneficiaries who are still contingent 'cause they have to survive Mom or Dad to get what's in that trust, but they're obligated to send out a notice, give them a copy of the trust and give them annual accountings.

Vinny Casiano: 

And frankly, I think that's a good law because so many people live for almost... They could live a decade now where they no longer have the ability to revoke or change their trust, somebody else is in charge and they don't have to tell anybody what's going on for 10 years. Well, by the time 10 years is gone, what happened to everything? Where is it all? So I think that is good law. Mind you, I think it will probably result in there being more litigation on this in families that are dysfunctional or where somebody is being dishonest, but so be it. That was gonna end up that way anyway.

Rob Rosenthal: 

Well, it already sounds so complicated, Vinny.

Vinny Casiano: 

Well, you know Rob, I always say, if this was simple, I wouldn't have a job. Right?

Rob Rosenthal: 

I hear you. I hear you. Let's talk about some specific things. What about spousal rights? Is it possible a spouse can be disinherited, or whatever the proper term is?

Vinny Casiano: 

Sure, you can attempt to disinherit a spouse, and that really depends on basically whether or not the property you have is community property or separate property. So you have to understand that definition, and those terms are really part of family law, but this is the interplay of family law and estate planning and decedents' estates. I have several cases going now where maybe there wasn't a will, or there was a will where a spouse attempted to disinherit another spouse. Not knowing what the law is can really be problematic as far as furthering the objectives of what one spouse wants over the others. Right?

Rob Rosenthal: 

Right.

Vinny Casiano: 

Bottom line here is, when you are married, any property that you acquired during your marriage is considered to be community property, any income you make is considered to be community income, and it doesn't matter whether one spouse doesn't work a day, doesn't earn anything. If you acquire it with your income, the spouse that's earning income, buy things when you're married, that's community property. Now you can have a prenuptial agreement that can change that, you could do different things. But that's community property, unless it was money that was inherited. Inherited money, as long as it's kept separate, a separate property, and you can do whatever you want with your separate property, you do not have to give it to your spouse.

Vinny Casiano: 

However, if you do go through probate or different things, if that spouse was relying on you for necessaries and everything, there are different petitions you can bring in court and say, "Wait a second, while this probate is going on if you didn't have a trust, we need to get some money so we can maintain." If they try to disinherit you and it's community property, you can bring a petition to say, "Wait a second, my spouse couldn't do that. I have a right to some of this property." Petitions for entitlement, spousal property petitions. There's a whole range of tools I have in order to assist spouses in that particular instance.

Rob Rosenthal: 

My head is already spinning here, Vinny. It occurs to me the difficulty with this is, if I'm the person setting up the trust, I want it to be iron-clad, I don't want somebody to be able to challenge it and change it. If I'm the person who feels like the trust that there was undue influence or whatever, then I want to be able to, "Hey, let's make this fair." What's the middle ground? What's the secret? Is it finding the right attorney in the beginning? What's your advice?

Vinny Casiano: 

Well, certainly, I think that in this day and age, and especially with... If you watch TV, you have to have seen a LegalZoom commercial where they're telling you, "Hey, this is easy stuff, you don't need an attorney, you're just gonna spend money you don't need 'cause after all, I can push your button on my computer and I can pop out a trust, and why should you pay me for any of my advice?"

Rob Rosenthal: 

Right.

Vinny Casiano: 

Absolutely ridiculous if you think through that. The value of the attorney is being able to explain your options and what the consequences of different decisions are. Bottom line here is that you can indeed do certain things that will... You can never stop somebody from filing a lawsuit and claiming that a will or a trust should be invalid. What you can do is, as the attorney drafting and advising your clients, you can do certain things that will make it much more difficult for a person to prevail if they do so. And that ranges from strategies of not totally disinheriting somebody, maybe giving them something rather than nothing. Right?

Rob Rosenthal: 

Right.

Vinny Casiano: 

So everybody says, "Oh, I have a new contest clause. If they say anything against this, they get a dollar." Nah, that doesn't hold up in California, it hasn't for quite a while. If you have probable cause to bring a claim, then you're not gonna just get a dollar even if you lose. But there are certainly other things you can do. If you are disinheriting somebody, do you just wanna do it once? No, you wanna do it every year, do the same exact thing, because then the person that wants to contest what you said, if you did it five years in a row before you died, they have to contest each and every one of those for each five years. And you know how much more difficult or how much more work that is for the attorney that's taking on this case, right?

Rob Rosenthal: 

Right.

Vinny Casiano: 

That means that that person that wants to contest this is probably gonna have to pay a lot more money and that may be enough of a disincentive not to do it.

Rob Rosenthal: 

It sounds like even more evidence that it's so important to find the right attorney to help you from the very beginning in these situations.

Vinny Casiano: 

Well, and if I could chat my horn a little bit here is that I am a little bit different than a lot of attorneys in that I not only draft plans, but I litigate them. Some attorneys will say, "Oh, you really have to choose one because there's too much to understand in either one." I don't necessarily think that's the case. I think the fact that I'm a drafter makes me a better litigator, the fact that I litigate makes me a better drafter. But I let my clients decide that. Obviously, the people that hire me, they believe that as well.

Rob Rosenthal: 

Really interesting information, Vinny, as always when we talk. Thank you for helping us out today.

Vinny Casiano: 

Thank you, Rob.

Rob Rosenthal: 

And that's it for this episode of Ask the Lawyer. My guess has been California attorney, Vincent Casiano. Again, I remind you, if you'd like to ask Vinny questions about your situation, go to askthelawyers.com, click the button at the top that says Ask a Lawyer and it'll walk you right through the very simple process right there. Thanks for watching. I'm Rob Rosenthal with Ask the Lawyers.

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