Use of mediation to handle probate and estate disputes
It has become increasingly common for family members to contest their inheritances. Such probate and estate disputes can alienate family members against each other, and cause irreparable harm to relationships among beneficiaries. An effective remedy is mediation, which is a type of alternative dispute resolution (ADR) to reach a settlement between parties. The principal role of the mediator is to help the parties arrive at an agreement via communication and negotiation.
Mediation differs from arbitration in that mediation is more likely to produce an outcome that is agreeable to both parties. Arbitration, on the other hand, is a process in which disputes are resolved by an arbitrator, and the resulting decision, or award, is binding in the courts.
Probate administrations inherently involve disagreements among family members, and thus, result in more disputes over wills and estates. Even though the majority of states have a forced-share provision for spouses who have been disinherited, the provision does not apply to children and other heirs, thereby increasing the likelihood of a will contest in the event that someone is disinherited. The beneficiary’s motivation to engage in a will contest or probate dispute is further increased by the fact that such disputes are decided by jury trials, and the absence of a provision requiring the unsuccessful party to pay attorneys’ fees.
Given the rise in life expectancy of baby boomers, who are in a position to transfer the largest amount of wealth ever in the United States, it is likely that an atmosphere encouraging the rise of inheritance disputes will be created. The possibility of such disputes is further intensified by the prevalence of “do-it-yourself” law websites, including LegalZoom and RocketLawyer, that offer inexpensive legal services. However, clients may not always understand the repercussions of their answers, and as a result, the estate planning documents may not be sufficiently well drafted to coincide with the client’s wishes.
Mediation can be an efficient, low-cost method of resolving probate disputes in such a way that family relationships are preserved.