June 1, 2007
Written by Barbara J. Hill, Esq.
Estate Dispute? – We Can Help.
A will goes to estate administration. The executor hires an attorney to help shepherd the estate through the minefield of steps necessary for the proper estate administration. But wait; one or more of the beneficiaries (or someone who had expected to be a beneficiary) raises an issue with the proposed division of the estate. Now what?
This situation can create a myriad of problems for the estate attorney, the executor, and the other beneficiaries of the will. This is the perfect opportunity to turn to an expert in estate mediation. Who does the estate attorney represent? The estate, yes, and specifically, the executor. The estate attorney will be well versed in dealing with estate administration, in understanding the terms of the will, and even in recognizing unintended ambiguities. That attorney may also be creative in devising and suggesting potential solutions.
However, many estate attorneys are sensitive to the potential or perceived conflict of interest that arises when the estate attorney is put into a position of trying to resolve disputes among beneficiaries. This is certainly more pronounced when the executor is also a beneficiary under the will.
These issues go beyond the attorney’s potential malpractice liability. The cost of dealing with these disputes might even exceed the monetary claim at stake. The types of conflicts raised in these contexts are often about far more than the money involved for the beneficiaries. Typically, issues raised at this time revolve around the family and other relational dynamics leftover from years past. The cost of legal time spent resolving the dispute might well exceed the amount in conflict. Even worse, the emotional cost of the conflict can exacerbate the already fractured relationships that led to the dispute in the first place. Estate mediation provides a forum to resolve the specific monetary claim as well as to air and potentially resolve the underlying emotional issues. Mediators are trained to bring the parties to the same table, to help the differing perspectives be heard around that table and to help the parties craft a solution that meets their respective concerns.
When someone (here, a beneficiary or someone who had expected to be one) raises a concern relating to the division of an estate, that person is likely to be guarded with their information. Thus, any conversation with the claimant is likely to be akin to negotiations among competing parties. The attorney handling the estate administration may be seen as an adversary. The parties may each harden in their positions. The conflict may escalate, and the relationships among family members deteriorate. Instead, when the parties turn to estate mediation as a means of dispute resolution, the process requires that there is full disclosure of the facts and concerns. The estate mediator becomes a partner in the solution: The estate mediator is a neutral ‘fact finder’ and will define and focus the issues in dispute. Even more, through estate mediation, the mediator hears the concerns of all interested parties and the parties really hear each other.
Then, the parties themselves, with the help of a trained mediator, craft solutions that meet those concerns.
Through estate mediation the issues get resolved, the parties accept the resolution voluntarily, and the conflicts get settled. All this is done without prolonged monetary expense and the emotional toll of an estate contest or protracted litigation. Estate mediation provides a win-win solution for all of the parties and the estate attorney as well.
Here at the Centre for Mediation and Dispute Resolution, we work in partnership with estate attorneys to help craft estate plans to minimize the potential for disputes among the intended beneficiaries. We work with estate attorneys after the plan is being administered to forestall conflicts that arise during estate administration. Estate mediation is a cost effective approach to reaching a better resolution of estate disputes. We look forward to working with you.
Please Call Our Office For Answers To Your Questions – 781.239.1600
