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Thursday, July 22, 2021

When Is a Trust Invalid in Florida?

Whether you are considering getting a living trust as a part of your estate planning or you expect to be a beneficiary of someone else’s trust, you might be wondering when a trust is invalid in Florida. Several different situations could lead to a trust getting invalidated. A Florida trusts attorney can offer guidance on how to make a trust that is unlikely to get “busted,” and what to look for if you, as a potential beneficiary, question the validity of a trust.

Why the Settlor of the Trust Needs Legal Capacity

The settlor of the trust is the person who creates the document to distribute his assets. You must have mental capacity if you want to make and sign important legal documents like contracts, wills, and trusts.

The settlor of a trust must have understood at the time of making and signing the trust document essential things, like:

  • Who are the members of his immediate family and expected heirs
  • The legal consequences of signing the trust document
  • A general idea of the extent of his assets

If the settlor does not grasp those or similar concepts, a judge could declare the trust document invalid.

Two important take-aways from this point are:

If your loved one was elderly or had mental health challenges, Alzheimer’s disease, or another form of dementia when he signed the trust papers, you might have a valid reason to question the trust. If you are the settlor and find yourself in one of those situations when you want to create a trust, you should talk with your estate planning lawyer about steps you can take to protect the enforceability of your trust documents. For example, your attorney could arrange an appointment for you to get a medical evaluation of your mental capacity at the time of the signing

A person with dementia, mental illness, or other special needs could create valid legal if there is sufficient evidence that he was in a “lucid interval” at the time of the document creation.

Undue Influence or Duress Can Invalidate a Trust

The trust needs to be an expression of the wishes of the settlor with regard to his estate assets. If the settlor signed the papers because someone exercised undue influence or the settlor was under duress, then the trust does not state the true wishes of the settlor.

Undue influence can happen when someone close to the settlor, like a close friend, relative, caregiver, or trusted advisor, convinces the settlor to change a previous will or trust and write a new estate planning document that cuts out previous beneficiaries or gives the undue influencer a disproportionate amount of assets.

While undue influence can be insidious, duress can be outright abuse. For example, a caregiver might withhold an aged person’s food, water, medication, or other items until the victim signs the documents.

Dotting the I’s and Crossing the T’s

Florida law contains detailed requirements for trust documents to be valid. When there are improprieties, like the new beneficiaries of a trust being the only witnesses to the settlor’s signature on the document, a judge could find the papers invalid.

If you plan to contest a trust or want to set up a trust that will withstand challenges, you will want to work with a Florida estate planning attorney. Contact us today.


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The Law Office of Jeffrey A. Herzog, P.A. assists clients in Florida, including North Pinellas County, Palm Harbor, Trinity, West Pasco County, and the surrounding areas.



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| Phone: (727) 789-4000

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