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Mr. Van Dyke regularly answers many frequently asked questions on Avvo.com.

If you suspect that your mother may have been “tricked” into excluding you (as a natural heir) from her estate or trust, you should retain counsel to investigate and, if necessary, litigate the issue of fraud and/or undue influence. The 120 day deadline may or may not apply to shorten the ordinary 3 year statute of limitations on a trust contest. That will depend on whether or not the trustee provided appropriate notice. Many times, the notice is not served appropriately and does not serve to shorten the time frame in which you must file your petition. Best practice would be to assume the 120 days notice does apply and plan to file your trust petition well before the expiration of the 120 days. As for the trustee’s immediate transfer of assets free from trust, there is nothing necessarily preventing the trustee from doing so (at his or her own peril), but a prudent trustee would never do so. Prior to the expiration of the contest period (120 days in this example) a trustee could not be certain that the distribution scheme will remain as stated in the trust instrument. Best practice is for the trustee to serve the required notice, wait out the 120 days in order to determine if the distribution scheme as stated in the instrument is final and not subject to further contest. Finally, should you prevail in your trust contest, assets improperly distributed are the responsibility of the negligent trustee. Beneficiaries that have improperly received trust assets can be compelled to return them to the trust. In a perfect world, the trustee would have posted a sufficient bond to ensure faithful compliance with his or her fiduciary duties, but that is not always the case.

Richard S. Van Dyke, Esq., (April 16, 2018)


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