• The attorney and client discuss in depth the ramifications of the beneficiary designation accounts and joint tenancy accounts, and the client unequivocally states that the distribution, which would obtain on his death with these jointly titled accounts, is NOT what he wishes.
• The client has children from two prior marriages who do not get along well and a "Marvin Partner"
• The client wishes to protect his assets from his children’s creditors and reduce his estate taxes

The client employs the attorney to draft an Amendment to the Revocable Living Trust, which will accurately reflect his distribution wishes, a Pour-over Will, a Family Limited Partnership, and a Dynasty T rust for the benefit of his children and grandchildren. The amendment does not include a "no contest" clause.

What the amendment does is change the disposition as to the trust assets ONLY by reference to a specific paragraph. Hence, the first attack by any disgruntled beneficiary will be that since the amendment does not include a "no contest" clause, the no contest clause in the five-year-old Trust does not apply to him or her since his or her asset is only mentioned in t he amendment.

Now - suppose the Trustor, the client, dies unexpectedly. One of the children named on the joint tenancy account - which the Trustor directed be funded into his RLT account - files a Probate Code Motion seeking a Declaratory Relief Adjudication that his claim of ownership to the joint tenancy account does not constitute a "contest" within the meaning of the "no contest" clause in the Trust instrument. The Trustor, prior to his passing, wrote to all of the financial institutions upon advice of counsel, asking each to transfer title to his RLT. All beneficiaries were notified and said that they would "take their name off the accounts" if the institution so required.

The problem for the attorney, is that any disgruntled heir, whether a joint tenant, a named beneficiary of an IRA or a Totten Trust, can bring a Probate Code Motion to have a judge determine whether or not  "if" the beneficiary filed a civil action to claim the asset, such a filing would constitute a "contest" within the meaning of the "no contest" clause.

Fortunately, the client’s attorney foresaw potential challenges to the Trust provision - due to the complicated Trust and account scenario - by not only amending the Trust to reflect the client’s wishes, but he added additional language to the "no contest" clause. In this case, the deceased client clearly intended the disposal of all of his property in the Trust estate when the "trustee" is directed to divide the Trust estate "including any assets subsequently added to the Trust estate" in a specific manner.

The attorney also included the following assignment language to the Revocable Living Trust (shown below).

Therefore, when a Trust disposes of the "trust estate" and where the joint tenancy account is clearly a part of that trust estate plan - whether it be by the written instruction to the financial institution or the assignment of that account to the Trust, and where our client’s intent is clearly evidenced in the amendment to the Trust executed along with his integrated estate plan - then any action to claim such an account as the beneficiary’s own money may be determined a "contest" to the Trust instrument, no matter whether the attack in on our client’s mental competency or "undue influence."

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