2011: Five Strategies to Avoid Probate and Trust Litigation

In San Diego, litigation in probate court for wills or trusts can be time consuming and expensive. In addition, litigation for trust and wills can also be uncertain. The Probate Courts in San Diego are located in North County at the Vista Court House and downtown San Diego at the Madge Bradley Court House. Litigation is to be avoided at all costs however this cannot be guaranteed. A will is not designed to avoid probate but a revocable living trust is. If you do not have a revocable living trust, please contact us for a free and confidential consultation to determine if this estate planning procedure is right for you.

The first strategy is, as above, to have a revocable living trust prepared. A revocable living trust will include not only the trust provisions but also powers of attorney, advanced health care directives, pour over will, and many other provisions. A revocable living trust is designed to avoid the probate fees and costs as well as the time involved in the distribution of the estate.

The second strategy is to consider a “no contest clause”. This is designed to protect the revocable living trust from litigation in probate court. This strategy gives a bequest to a beneficiary that they would lose if they contest the revocable living trust. This is an advanced strategy and should be discussed with the attorney preparing the revocable living trust.

The third strategy is to use an attorney who has experience in preparing estate planning documents and revocable living trusts. These are complicated and must be done correctly to give the legal protection the document was designed for. In the law, this is one of the only areas where a person may make a contract with themselves which is enforceable under the law.

The fourth strategy is to make sure to fund the revocable living trust. This may include recording a deed with the San Diego County Recorder transferring real property into the name of trust. This also should include transferring the other assets, as appropriate, into the name of the trust such as bank accounts. It is very important to make sure any assets acquired post formation of the revocable living trust are also transferred into the name of the revocable living trust.

The fifth strategy is to choose the correct trustees and executor. This should assist in preventing litigation since the executor and trustees will be intimately involved and will assist in resolving disputes regarding the estate property and any distributions.

In conclusion, all state laws can vary and it is essential to have an attorney who is familiar with the laws of your state. In San Diego, please feel free to contact us for legal representation. There are many other strategies which can assist in preventing will and/or trust litigation and our firm can discuss these with you.