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Can a CD with POD be challenged? It was created in 06 the same time as ammendment to her trust.

Cocoa, FL |
Filed under: Trustee

I am now her legal guardian and the second trustee to her trust. First trustee left in 2011. She has a trust stating there are monies with POD - Original Trust date 2004-ammendment to the trust in 06 and a few months later POD on accounts was created. She was deemed incompatent in 2011

Attorney Answers 4


Most common reasons for challenging are undue influence or incompetence.
You will need proof that will hold up in court to be successful and it will be expensive and time consuming.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

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Has the settlor been adjudicated incompetent (by the court)? If so, challenging a trust that was created when she was considered to be competent will be hard to do. As Attorney Pippen points out, the burden will be upon you, at least initially, to prove that there was undue influence and that the defendant assisted in procuring the trust from which they are to benefit. If you can provide sufficient evidence, the burden then shifts to the respondent to prove that there was no undue influence. This is not something that you should undertake yourself. A good trusts and estates litigation attorney can assist you greatly in this process.

Carol Johnson Law Firm, P.A. : (727) 647-6645 : : Wills, Trusts, Real Property, Probate, Special Needs: Information provided here is anecdotal and should not be relied upon or considered legal advice. Every matter is different and answers given here are general in nature and may not reflect current Florida law at the time you are reading this posting. Please contact me if you feel you need additional assistance with your matter.

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My colleagues have provided you with sound advice on this issue. The burden would be on you to establish that the accounts at issue were created as a byproduct of undue influence or incompetence. This will be a very costly process. This is not a do-it-yourself project, if you decide to proceed. If you need a referral to an attorney, try the local bar association or the Avvo Find a Lawyer tool.

** LEGAL DISCLAIMER ** My response above is not legal advice and it does not establish an attoreny-client relationship. When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am licensed in California. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. For specific advice regarding your particular circumstances, you should consult and retain local counsel. Law Offices of Eric J. Gold Telephone: 818-279-2737 Email: service@egoldlaw.con

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Challenged by whom and for what purpose? The CD is not a probate asset; and the Pay on Death beneficiary designation keeps it out of probate. So, if anyone wanted to challenge it, they would have to include the bank in the proceedings.
Why did you mention the 04 and 06 dates? She wasn't adjudicated as incompetent until 2011; but the POD designations were created in 06 or 07. She wasn't considered incompetent then.

Dennis Phillips is an attorney and financial planner based in South Florida. He is a member of the Florida bar, he holds the nation-wide Series 65 Investment Advisor license, and holds an insurance license in Florida and Virginia. Disclaimer: The response above is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, would significantly alter the above response.

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