Confusion and conflict are unfortunate, but sometimes unavoidable upon the death of a loved one. Before pursuing courtroom resolution via probate litigation, consider negotiation or mediation, with the assistance of an experienced probate attorney. With time, money and relationships at stake, settlement outside of court is often wise.
Negotiation and Mediation
Serious conflicts, misunderstandings and misinterpretations related to the intentions and decisions of the deceased, as well as failed communications between the fiduciaries of an estate (for example the executor or personal representative), and the beneficiaries of the estate are among the causes of probate litigation. Specific examples of probate litigation include challenges to a will, contests over the appointment or actions of fiduciaries, such as an executor or guardian, and suits over the interpretation of wills or trusts.
Though probate attorneys can pursue litigation, their expertise can also be leveraged for negotiation and mediation. Litigation can be costly and time consuming, as well as lead to long lasting tears and scars in relationships. Alternatively, negotiation or mediation efforts leading to a family settlement agreement can successfully keep family matters out of courtroom tangles. Additionally, family settlement agreements can be useful when mistakes or slights were made during estate planning:
A family settlement agreement can be appropriate when surviving family members agree as to the disposition of a deceased family member’s estate that is different from how the decedent had specified in a testamentary instrument. Often, they arise when a deceased parent has not devised property equally to all of the decedent’s children, but the children…agree that an equal division should be made….A family settlement agreement might lead to a better tax result for the estate over what would have occurred based on how the decedent’s estate plan was drafted. Or, perhaps the decedent’s will made a simple mistake – such as a specific devise of a tract of farmland to the wrong child as the farming heir. A family settlement agreement can be an efficient way to “clean up” the error. Another common situation for the use of a family settlement agreement can occur with second (or subsequent) marriages and each spouse has their own child or children.
Settlements can be agreed to through either negotiation or mediation, both of which take place outside of courts. Negotiation is an informal effort to come to agreement with “the other side”:
For example, your attorney can send a letter to the opposing party outlining your concerns and expectations and recommend a path forward. This opens negotiations between you and your attorney and the opposing party or their legal representative.
This informal approach is often less stressful than going through the court system and can be tailored to the size and scope of the specific issues involved. Negotiation can also allow for a greater focus on solutions rather than legal barriers, allowing for creative solutions not available through other means of dispute resolution. Throughout the negotiations, your attorney can help keep an eye on important details that should not be overlooked and ensure that you get the best outcome possible.
Similarly, mediation is a collaborative process, but uses an agreed upon third party mediator to help “the parties evaluate the potential outcomes and consequences of various options, encouraging them to find a resolution that is fair and reasonable….Once an agreement is reached, your attorney can document the terms of the settlement in a legally binding agreement.”
Helpful To Know: Fiduciary Bonds
Frequently the representative appointed to handle the affairs of the deceased, such as an executor, personal representative, or trustee is required to obtain a type of bond, referred to generally as a fiduciary bond. The purpose of a fiduciary bond is to guarantee that debts and assets will be properly handled in accordance with state laws and protocols. A fiduciary bond is sometimes specifically referred to as a trustee, executor, personal representative or administrator bond.
Colonial Surety Company makes it quick and easy to obtain fiduciary bonds of all kinds. A user-friendly online service allows you to quote and obtain a bond that is instantly available to download or e-file. Fiduciaries in every state can efficiently obtain their bonds right here:
Probate attorneys can help clients secure court and fiduciary bonds with a few clicks on The Partnership Account® for Attorneys. Just select the bond needed, send it to your client for payment, and then download, e-file or print the bond.
Our fiduciary bonds include: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on. Court bonds include: appeal, supersedeas, injunction, replevin, receiver and more.
Colonial Surety is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA. Our customers have awarded us a 4.8 Trustpilot score.Whenever and wherever you need a bond, trust Colonial: www.colonialsurety.com