PROBATE: MEDIATION VS. LITIGATION
Oct. 26, 2021
Settling a deceased person’s final affairs and transferring assets to inheritors often involves several complicated procedures. Ideally, the probate process should be simple and straightforward once there is a valid will. However, we do not live in an ideal world. Different challenges are often encountered during the probate or estate administration process.
According to a recent survey by EstateExec, more than 44% of respondents had experienced or were aware of family conflict during the estate settlement process. In such situations, litigation and mediation are among the possible options to resolve conflicting interests and disputes encountered during the probate process.
As an experienced Texas probate and estate mediation attorney, I have the resources and experience to guide and assist individuals and families involved in estate planning and probate disputes. I’m available to discuss your unique situation and help you understand the advantages and drawbacks of mediation and litigation. I will work diligently with all parties involved to resolve the challenges and reach a fair agreement. My firm, Russell Manning Attorney at Law, proudly serves clients in Corpus Christi, Texas, and throughout southern Texas, the Coastal Bend area, and neighboring counties.
COMMON PROBATE DISPUTES
A probate dispute occurs when family members, heirs, beneficiaries, or other relatives disagree over how the estate is administered. Some common issues that may arise during the probate process include:
The named executor not willing to act
Disputes regarding the right value of the estate
Challenging the validity of the will
Whether a new will is enforceable or supersedes the old will
Allegations of executor misconduct
Accounting and tax issues
Disagreements among executors
Allegations of fraud or undue influence
These are just some of the many issues that may arise during the probate proceedings. An experienced attorney can evaluate the surrounding circumstances of your unique situation and help you understand your available options to resolve the probate dispute.
Mediation can be used to resolve probate disputes more amicably, especially when confidentiality is required. During mediation, all parties involved in the probate dispute will come together to discuss a possible resolution. A third party will serve as the mediator, discuss the issues with each party individually, and help facilitate or negotiate a possible compromise.
PROBATE MEDIATION PROCESS
Here are the steps involved in the probate mediation process:
The mediator and all other participants will introduce themselves.
The mediator will present an opening statement.
Each party is called upon to present the dispute from their own perspective with no interruptions.
The mediator will outline a detailed list of issues that needs to be discussed and resolved.
The mediator discusses the case with each party privately (without the other present). This is referred to as “ex parte” communication.
The mediator will guide and assist the parties involved with negotiations. The mediator will help keep the discussion productive and on track.
If the parties reach an agreement, the mediator will draw up a settlement agreement and present it to the probate court for official approval.
ADVANTAGES OF MEDIATION
It is faster, simpler, and cheaper than litigation.
The mediation process is more flexible and allows the parties involved to craft a personalized solution.
It is confidential and allows you and your family to keep things private.
DRAWBACKS OF MEDIATION
All parties cannot be compelled to partake in the mediation process.
The party with the authority to settle may be unavailable or unwilling to negotiate.
Either party can withdraw.
There are no formal rules guiding the mediation process.
If mediation is successful, you can enforce the settlement agreement just like litigation once it has been approved by the probate court.
In the event that the probate dispute cannot be resolved through mediation or other alternative dispute resolution methods, litigation may be the eventual option. Litigation requires a private judge to step in and help resolve the probate dispute through the court system.
PROBATE LITIGATION PROCESS
Here are the steps involved in the probate litigation process:
One party files a complaint of wrongdoing.
A copy of the petition is served to the defendants (other parties involved).
The defendant served with the petition will answer the allegations brought against them.
Each party is required to investigate all of the facts of the case, obtain evidence, interrogate the other party, and request for the production of documents, admission, and depositions.
The parties will enter a dispositive motion asking the probate court to dismiss or resolve specific parts of the case.
Finally, a trial may commence if the issues haven’t been resolved yet.
ADVANTAGES OF LITIGATION
It is conducted through court. Hence, litigation becomes a matter of public record.
Either party may file an appeal challenging the court’s decision.
There are clear rules guiding the litigation process, including what constitutes evidence.
You’ll eventually have a result, regardless of the time it takes.
The court judgment sets a legal precedent.
Every party will be treated equally.
DRAWBACKS OF LITIGATION
Litigation is impersonal and unpredictable.
Litigation is lengthy and expensive.
Any available judge can preside over the case.
Confidentiality cannot be maintained.
Litigation can burn bridges, damage relationships, and deepen rifts among loved ones.
When involved in a probate dispute, getting help from an experienced attorney is crucial. Attorney Russell Manning can evaluate the surrounding details of your case and determine how best to resolve such probate issues.
WORKING WITH AN EXPERIENCED PROBATE ATTORNEY
In the event of conflicting interests and challenges, mediation and litigation are among the possible options to resolve probate disputes. A knowledgeable estate planning attorney can help evaluate your unique situation and help you understand your available dispute resolution options.
Using my extensive legal understanding, I will advocate diligently for your rights and work with all parties involved to resolve any disputes amicably and peacefully. Even if it requires litigation, I will represent you compassionately in court and help fight for what is rightfully yours.
Contact my firm – Russell Manning Attorney at Law – today to schedule a simple case assessment. I proudly serve clients across Corpus Christi, Texas, including Bee County, southern Texas, and the Coastal Bend area.