Estate Planning Lawyer

The probate, or estate distribution, process can be hindered in a number of ways; therefore, increasing the possibility of needing trust or estate litigation.

Various estate planning tools can be used to make the probate process easier, or to eliminate it all together. A last will and testament is one of these tools that requires all heirs to go through the probate process. To avoid this process, a trust can be drafted. Another popular tool used in estate planning is a prenuptial agreement.

How Prenuptial Agreements Work

A prenuptial agreement specifies how a married couple’s’ assets will be handled. This is agreement is drawn up before the marriage and is legally binding. It protects one or both parties from losing assets in the event of a divorce. In other words, a prenuptial agreement spells out who owns what, and who will receive what if they divorce. Some prenuptial agreements also include stipulations on how a will or trust should be drafted.

A Prenuptial May Take Priority in a Trust or Will

Depending on the circumstances of a case, it is possible for a prenup to take priority over a trust, will, or other estate planning document. In general, for this to be true, there would need to be specific provisions laid out in the document. Sometimes, the provisions of a prenup will contradict the provisions of a trust or will drafted by one spouse. In this case, a trust litigation lawyer may need to resolve the matter.

If this happens, a lawyer can ask the probate court to determine whether or not the prenup is valid and should be upheld. At this time, heirs or beneficiaries of the trust or will can bring forth evidence to prove or disprove the contradictions. For example, if an heir can show that the prenuptial agreement was drafted under duress, it may be deemed invalid. In this case, the court may not enforce it. In another example the probate court might find that the prenup was unfair and encouraged a divorce. Again, it may not be valid. On the other hand, if a probate court judge decides that the prenup was drafted fairly by both spouses, it may be enforced. Thus, the prenup would supercede the will or trust.

How a Prenup Can Be Affected

Our trust litigation lawyers have found that in our experience, whether or not a prenuptial agreement takes priority over a trust or will largely depends on the actual provisions of the agreement. A primary consideration when determining the provisions will regard the laws of the state in which the agreement applies. This is especially important when one spouse died in a different state from where the agreement was drafted. If there is no provision that explains the preferences of laws, the state aws where the person died will be applied.

Trust litigation matters can arise for a number of reasons. It should be made clear that not all disputes will lead to litigation in a courtroom;however, there are some issues that are more likely to do so than others. If you are facing a dispute involving a prenuptial agreement and a trust or will, you may want to talk with a Sacramento estate planning lawyer.

Thank you to our friends and contributors at Yee Law Group for their knowledge about estate planning and litigation.