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Virginia Injury & Will Contest Attorneys

The Difference Between Wills and Trusts

an older couple going over a will with a younger person

When it comes to estate planning, there are two main tools that people use: wills and trusts. Both can be effective in different ways, but it is essential to understand their differences.

What is a Will?

A will is a legal document that outlines how you want your assets to be distributed after you die. It is a way to ensure that your wishes are carried out and that your loved ones are taken care of.

What Makes a Will Valid?

A valid will must be created by someone, called a testator, who has the mental capacity to understand the effects of the will being made. This type of understanding is known as testamentary capacity.

How Can You Contest a Will?

Two of the most common reasons for contesting a will are that the person who wrote it didn't have the mental capacity to do so or that they were unduly influenced by someone else:

  • Lack of Testamentary Capacity - A testator lacks the understanding of the nature and extent of their property, who their natural heirs are, and the ability to communicate their wishes clearly and coherently.
  • Undue Influence - When another person unduly influences a testator, usually someone in a position of power or authority over the testator, their ability to make decisions about their estate may be compromised.

Proving a lack of testamentary capacity usually requires evidence that the testator had dementia or some other cognitive impairment at the time the will was written. Proving undue influence requires evidence that the testator was being coerced or manipulated by someone else.

What is a Trust?

A trust is a legal arrangement in which one party, called the settlor or trustee, holds property or assets on behalf of another party, called the beneficiary. Trusts can be created for various purposes, including managing property, protecting assets, and distributing income or other benefits. The terms of a trust are typically outlined in a written agreement between the settlor and the beneficiaries.

Unlike wills, trusts can bypass the probate process.

The Requirements of a Trust

As outlined by Virginia law, there are three primary requirements to establish a trust. To create a trust:

  1. The settlor must have the capacity to create a trust.
  2. The settlor must specify their intention to create a trust.
  3. The settlor must have beneficiaries or a specific purpose for the trust.

Additionally, a settlor must select a trustee who will carry out the responsibilities of the trust in good faith.

Are Trusts Contestable?

Contesting a trust is similar to contesting a will. There are various grounds on which you can challenge a trust, such as if the trustee is not following the terms of the trust, if the trustee is mishandling trust assets, or if you believe that the trust was created under duress or fraud. It can be difficult to prove any of these grounds, so it is important to work with an experienced attorney who can help gather evidence and build a strong case.

Looking For a Shenandoah Valley Will Contest Attorney?

If you are an heir or beneficiary thinking about contesting a will or trust, the attorneys at Obenshain Law Group can help. We understand the complicated legal issues involved in these kinds of cases, and we can provide experienced and knowledgeable representation. We can help you determine whether there are grounds for a contest, and if so, we will work tirelessly to help you get the outcome you deserve.

If you are thinking of contesting the will or are the executor of a will that is being contested, contact us today at (540) 318-7360 to schedule a free consultation.