What Is the Difference Between the Two Trust Types?
A revocable trust can be changed or canceled by the person who created it, called the settlor, at any point while they are alive and have legal capacity, which makes it a flexible tool for most people early in the planning process. An irrevocable trust generally cannot be changed once it is established, which trades away flexibility in exchange for stronger asset protection and, in some cases, tax advantages. Most people start with a revocable trust as the foundation of their estate plan, since it can be adjusted as circumstances change over the years, including a marriage, a new grandchild, or a change in financial circumstances. Irrevocable trusts tend to come into play later, often for specific goals like protecting assets from long-term care costs or reducing estate tax exposure for a larger estate.
How Long Can Someone Contest a Trust?
Montana sets a short window for challenging a trust after the settlor’s death. Under Montana Code Annotated Section 72-38-604, a person generally has 120 days after the trustee sends notice of the trust’s existence to file a legal challenge to its validity, or the earlier of that deadline and a separately calculated period tied to the settlor’s death. Missing this window typically forecloses the challenge entirely, regardless of how strong the underlying facts might otherwise be. This short deadline reflects a policy choice to bring finality to trust administration relatively quickly, rather than leaving distributions in limbo for years.
What Grounds Can Support a Trust Challenge?
Most challenges to a trust’s validity in Montana rest on one of a handful of common arguments, each requiring its own kind of proof:
- The settlor lacked the mental capacity to create or amend the trust
- Someone exerted undue influence over the settlor
- The trust document was not properly executed
- Fraud played a role in the trust’s creation or a later amendment
Each of these grounds requires its own type of evidence, from medical records to witness testimony about the settlor’s state of mind at the relevant time.
A Billings trust lawyers team can evaluate whether the facts of a particular situation actually support one of these grounds before a short filing window closes. Not every disagreement with how a trust divides property rises to the level of one of these legal grounds, so an honest early assessment can save considerable time and expense.
How Does a Trustee Protect Against Late Challenges?
Sending proper notice promptly after a settlor’s death starts the contest clock running, which protects a trustee from open-ended exposure to a future challenge. The team at Silverman Law Office, PLLC helps trustees handle this notice correctly, since a defective or incomplete notice can leave the contest period open longer than intended, exposing the trustee to a claim long after distributions have already been made. A trustee who distributes assets before the contest period has properly run can end up personally responsible for recovering property from beneficiaries if a challenge later succeeds.
What Should Beneficiaries Do if They Suspect a Problem?
Beneficiaries who believe a trust does not reflect the settlor’s true wishes need to act quickly once they receive notice of the trust, given how short Montana’s contest window can be. A Billings trust lawyers team can help gather records, medical history, and witness accounts early, giving a challenge the best chance of being evaluated on its merits rather than dismissed on a technicality tied only to timing. Setting up a consultation as soon as concerns arise, rather than waiting to see how things unfold, tends to preserve far more options than waiting until the deadline is nearly gone.
If you have questions about a trust you created, or one you believe was created improperly, speak with our team about the options available in your situation and how quickly you may need to act.
