October 2004
Volume 1, Number 1
Table of Contents
Probate:
Mediation: Nipping Estate Disputes in the Bud

Adam R. Gaslowitz, Esq.

What single event can do more damage to family harmony than a nasty divorce dispute? The answer: A will contest or other estate dispute. The worst legal, emotional and often financial nightmares begin when someone in a family contests a will -- that is, they seek the court system's intervention to modify or set aside a loved one's will. What they do not see going on is the emotional carnage that invariably results if litigation is pursued. Estate disputes can last for years, and have been known to drag on for decades, sometimes not concluding until well after the heirs themselves are deceased.

Who wins in these cases? Usually, no one but the lawyers.

Is there a better alternative? While a lawsuit over a loved one's estate may be unavoidable, there are often better ways to resolve the dispute than turning the matter into years of protracted litigation. Mediation is one such alternative. It is an opportunity to get the disputing parties together either before taking the matter to court or soon after litigation is begun but before one side throws down the gauntlet, thereby saving money, time and emotional battle scars that may never heal.

There are some early warning signs that can help you identify whether a deceased relative's estate is going to be difficult to administer.

1) Second marriage situations. These often lead to litigation when there are children from prior marriages, particularly where bad or no estate planning may result in everything being left to the surviving spouse. Regardless of whether or not the remarriage lasted longer than the marriage that produced the children, the children often lose. The surviving stepparent can easily disinherit the deceased's children once he/she has control of the estate, often leaving the entire estate to the survivor's children. Those children typically will not wait around to find out and choose litigation as an alternative. The situation is only made worse if the stepparent is closer in age to the children than to the deceased parent.

2) If some or all of the deceased's children have been left out of the will. In Georgia there is little statutory protection for disinherited children. If properly drafted, a will can easily disinherit a child or even a spouse. Regardless, when someone has been intentionally disinherited, he or she will usually contest the will.

3) When one child is favored over another in the will. Disparate treatment of children is a situation where the act, in and of itself, is not grounds for successful will contest, but the emotion involved often leads to litigation. All too often feelings of sibling rivalry do not go away in adulthood.

4) When one child steps in as physical caregiver of an elderly parent and takes over the parents' finances at the same time. Often this is a case where the child is actually helping a parent. Unfortunately, however, there are too many instances where the child uses the assets for his/her own purposes, perhaps convinced of their entitlement because of their caregiver role. Often the caregiver child may go further, convincing an elderly, feeble, or even incompetent parent to either make out a new will disinheriting other family members or transfer their assets before their death.

5) When a neighbor, friend or distant relative starts influencing an elderly parent. Sometimes the motives are not those of a good Samaritan, but those of an asset seeker. If an estate plan has recently been altered to favor someone other than the natural objects of the parents' bounty, an estate dispute is likely to follow.

6) If the executor of an estate is dragging his/her feet. We were involved in one administration where the estate was left open with assets undistributed to beneficiaries for 43 years, and another where the family of the deceased sold off all the deceased's assets before the executor ever got to announce who the beneficiaries were. Where substantial delays occur, heirs get impatient and suspicious. Court intervention may be their first step in bringing closure and resolution.

If any of these situations seem familiar, then you or someone you know is probably gearing up for a lengthy, protracted will contest. Before taking those next steps, however, talk to an attorney who not only specializes in estate litigation, but one whose philosophy is geared toward resolving estate disputes. Find out what their track record is in settling estate disputes before protracted litigation has consumed the entire estate. We regularly have had clients who came to us looking for legal recourse only to learn that they are facing legal proceedings that could take years to resolve if the family members they intend to litigate against become stubborn or the fires of their dispute are fueled by litigious counsel. Realizing they either may not have the wherewithal to see through a process that will only wreak havoc on already strained family relations or do not have the inclination for a lengthy, emotional battle, they agree to mediation.

It is not easy to sit in a room with someone with whom there is emotional conflict, but what most people do not realize is that the alternative course -- endless litigation -- is more painful. A good attorney can help all parties involved through the process and find ways to settle the estate before it is gone. After all, most people do not really want to leave their legacy to the lawyers.

Adam Gaslowitz & Associates specializes in Fiduciary Litigation, Estate Administration, Will Contests, Trust Disputes, Guardianships and Business Tort Litigation.

 

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