TIPS OF THE TRADE: DON’T PUT OFF TO TOMORROW WHAT YOU CAN DO TODAY – AVOIDING POST-DEATH CONTESTS THROUGH INTER VIVOS PETITIONS

Written by Andrew R. Verriere, Esq.*

"Death does not concern us, because as long as we exist, death is not here. And when it does come, we no longer exist." Epicurus’s musings on consciousness relate more to trust litigation over two thousand years later than he ever could have imagined. Many times the writing is on the wall well before the settlors of a trust pass away. Family dynamics make clear to all but the settlors that trust litigation will follow soon after their demise. Despite this anticipation, many settlors simply hope for the best, realizing that the problem will not be theirs to handle.

Historically, settlors could address these anticipated contests through the inclusion of no contest clauses, hoping they would dissuade post-death contests. However, the revisions to Probate Code section 21311 in 2008, limit the effectiveness of no contest clauses, leaving settlors with few tools to assure protection of a trust or amendment. Family members who receive little or nothing by way of a trust have nothing to lose through a no contest clause, rendering them ineffective deterrents.

The fallout of this litigation is familiar: after the settlors build an estate to pass along to their beneficiaries, huge portions are lost in litigation fighting over the validity of the trust, family divisions grow wider, and the memory of the settlor is often dragged through the mud with arguments over incapacity, undue influence, and elder abuse.