Probate Mediation, Estate Planning and Elder Issues

Mediation may be par­tic­u­larly attrac­tive for Probate, Estate Planning and Elder issues.  Factors that are usu­ally present in these mat­ters that can be addressed more ade­quately in medi­a­tion are:

  • Parties have a need to main­tain an ongo­ing famil­ial relationship
  • Parties want to avoid using up assets and funds with the time and expense of lit­i­ga­tion (remem­ber Charles Dickens’ Bleak House!)
  • Parties want to keep fam­ily mat­ters confidential
  • Strong emo­tions are involved that court lit­i­ga­tion would not address
  • The impor­tance of involv­ing myr­iad fam­ily mem­bers and giv­ing them the oppor­tu­nity to have their say face to face and to be validated
  • Assuring the the elder party gets to have input in the process and a sense of self determinatiion
  • Parties can come up with cre­ative solu­tions that a court would not be able to order

Often a skill­ful medi­a­tor can help fam­ily mem­bers address dif­fi­cult issues that would not be resolved by a court rul­ing.   If Mom left sec­ond son out of her will, all a Judge can do is decide if she was com­pe­tent when she wrote the will.   If she was, sec­ond son is out of luck.  In the same sit­u­a­tion, a medi­a­tion could bring all the fam­ily mem­bers together to dis­cuss the rea­sons behind this clause.  Maybe it was writ­ten 15 years ago when sec­ond son was sow­ing his wild oats and wasn’t com­mu­ni­cat­ing with Mom.  But those con­di­tions no longer existed by the time of Mom’s death  and he and Mom renewed their rela­tion­ship.   Mom just never got around to chang­ing her will.  By bring­ing the fam­ily into medi­a­tion, the other heirs and fam­ily mem­bers could decide to share their part of Mom’s inher­i­tance and/​or make sure that sec­ond son at least gets some­thing of sen­ti­men­tal value from his Mother.

There are many more sit­u­a­tions where medi­a­tion would help fam­i­lies resolve these kinds of dis­putes.  We will dis­cuss them more in later entries.

Posted in Elder Law, Estate Planning, Family Conflict, Guardianships & Conservatorships, Inheritance, Probate Tagged with: ,

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