Can You Force A Trust Into Probate?

Posted on: 28 July 2020


One of the main reasons that people setting up estates use trusts to transfer their assets is to avoid probate. Under probate law, it is very difficult to force a trust into a review by the court. Here is a look at some of the specific circumstances where it might be possible.

Contesting the Trust

It is impossible for someone who isn't named as a beneficiary of a trust to contest it. If the assets were legally transferred to the trust, you will not have a case. For that reason, most cases of this type hinge on whether certain assets should have been moved into a trust.

Improperly Transferred Assets

Much of the question of whether probate law services will be required hinges on whether the assets were considered inside or outside of the estate. For example, were the assets in question subject to what's called a pour-over? This is a process where assets are moved from the grantor's possession into the trust upon their death. A pour-over is activated as part of the person's will. Some similar issues can occur with living trusts if the transfer were fraudulent or poorly executed.

Transfers Subject to Probate

Normally, these sorts of transfers are done through a testamentary trust. A testamentary trust is created through a will, and assets are moved into the trust when the grantor passes. Some testamentary trusts may forgo the creation part by simply moving the assets into an existing living trust upon the grantor's death.

If this kind of transfer happens, it is considered part of the will. Consequently, the assets will have to clear probate before they can move into the trust.

Preventing Other Transfers

Absent this sort of connection to the will, a trust can only be questioned if it wrongly moved assets out of the estate and into the trust. This means raising questions about undue influence, improper paperwork, issues with witnessing, or the mental incapacity of the grantor.

Presented with these concerns, a judge will typically try to resolve them before considering the probate law implications. An injunction may be granted to prevent assets from being used while these issues are sorted out, but they are considered questions of trust law. You will not be able to discuss the probate side of the matter until the legal problems with the trust have been adjudicated. Even then, it will require a favorable ruling.

If the assets were wrongly moved to a trust, they'll be transferred to the estate. A probate court can then finally address the issue like it would other estate law concerns.