Contesting a Trust vs. Contesting a Will in Kentucky: Key Differences
When a loved one’s estate plan produces an unexpected or suspicious result, your first instinct may be to “contest the will.” But increasingly, the assets that matter most are held in a trust rather than passing under a will. Contesting a trust in Kentucky is a different legal process with different rules, different courts, and different strategic considerations. Understanding these differences is essential to choosing the right approach.
Where You File
A will contest in Kentucky is filed in circuit court, specifically the circuit court of the county where the will was probated. Under KRS 394.240, the will contest is a standalone civil action. A trust contest, by contrast, is filed as a declaratory judgment action or a petition in circuit court under the Kentucky Trust Code, KRS 386B.1-010 through KRS 386B.11-030. Unlike a will, a trust does not go through probate, so there is no probate proceeding to contest. The trust challenger must initiate a separate lawsuit.
Statute of Limitations
The deadlines for challenging a will versus a trust differ significantly. A will contest must be filed within two years of the will being admitted to probate under KRS 394.240. The clock starts when the will is probated — a fixed, easily identifiable date.
Trust contests have a more complicated limitations framework. Under KRS 386B.6-040, a trust can be challenged on grounds of undue influence, duress, fraud, or incapacity. The statute of limitations depends on when the challenger received notice of the trust and its terms. If the trustee sends proper notice under the Trust Code, the challenger may have as little as one year from receipt of that notice to bring a claim. If no notice is sent, the limitations period may be longer — but it is not indefinite.
Grounds for Challenge
The substantive grounds for contesting a will and a trust are similar: lack of capacity, undue influence, fraud, and duress. In both cases, the challenger must show that the person who created the document (the testator for a will, the settlor for a trust) was either incapacitated or subject to improper influence. The evidentiary standards are essentially the same.
However, trusts can also be challenged on additional grounds. A trustee can be sued for breach of fiduciary duty — mismanagement, self-dealing, or failure to account — even if the trust itself is valid. This gives trust beneficiaries an additional avenue of relief that will beneficiaries do not have until the estate is in administration.
No-Contest Clauses
Both wills and trusts can include no-contest clauses (also called in terrorem clauses) that threaten to disinherit anyone who challenges the document. Under KRS 394.076, no-contest clauses in wills are enforceable in Kentucky, but only if the challenger lacks probable cause for the contest. The same principle applies to trusts under KRS 386B.10-030. This means that if you have a legitimate basis for your challenge — credible evidence of undue influence or incapacity — the no-contest clause will not be enforced against you. But if your challenge is without merit, you risk losing whatever you were given under the document.
Privacy Considerations
Will contests are public proceedings. The will, the contest, and all associated filings become part of the public record. Trust contests can also become public once a lawsuit is filed, but the trust document itself may not have been part of any public filing before the challenge. Families who value privacy may prefer to resolve trust disputes through mediation or settlement rather than litigation.
Strategic Considerations
Because trusts do not go through probate, a trust challenge requires more initiative from the challenger. You may not receive formal notice that a trust exists until the trustee chooses to inform you — and by then, assets may have already been distributed. If you suspect that a trust was created or amended under suspicious circumstances, acting quickly is critical. Once trust assets are distributed, recovering them becomes significantly more difficult.
If you need to challenge a will or trust in Kentucky, contact Buckles Law Office at (859) 225-9540. We handle probate and trust litigation throughout the Commonwealth.
