Proper planning is crucial for anyone who cares about what happens to his or her assets after death. Even if estate taxes are not an issue, estate planning means taking steps to assure that your beneficiaries receive what you want them to receive, and how and when they will receive it. You don't have to have a large estate to want to make sure that it passes to whom you want it to pass and that it does not pass to certain others. After all, everyone wants to leave a legacy or to be remembered with affection. Sometimes, prospective clients will come in with a preconceived notion of what they can and cannot do, and then are quite pleased to learn that they can "call the shots."
Estate planning is not just signing off on a one-size-fits-all will or a voluminous trust document. It requires a frank discussion of all the "what ifs" and, to borrow a medical term, informed consent as to each the provisions included in a will or trust or deed. It may involve a decision to make a lifetime gift, or to enter into a cohabitation, prenuptial or postnuptial agreement. Depending on the circumstances, thorough estate planning may require a review of a separation agreement and divorce decree, a business buy-sell agreement, or the estate planning documents of persons from whom the client has inherited or expects to inherit.
In the absence of proper estate planning or when even proper planning goes awry, a decedent's survivors may resort to the Surrogate's Court to challenge the validity of a will or trust, to raise objections to an accounting, to register a claim against an estate, or to assert various statutory or contractual rights. So-called miscellaneous proceedings may be brought by or against a fiduciary. Commonly, the parties to these disputes are siblings or the children from the decedent's prior marriage and the surviving spouse.
Litigation in the Surrogate's Court has become more commonplace. As with all litigation, a party to an estate-related dispute wants his or her day in court. The reality, however, is that the present court system is tremendously overburdened and that, with motion practice and pre-trial discovery, that "day" might not come until literally years after a proceeding is commenced. The costs of litigation cannot be overemphasized and, depending on the level of animosity and the deepness of the litigants' pockets, it is not unheard of for attorneys' fees to exceed the amount of money at issue. And, as all lawyers know, despite the facts and the legal precedent, no result can be guaranteed, and the actual outcome of a case may not necessarily be the "right" one.
Mediation is a wise alternative to bringing a proceeding in the Surrogate's Court or, once there, litigating to the bitter end. This alternate dispute resolution technique, which has been used successfully in purely commercial matters and in divorce contexts, can also be applied in a controversy involving an estate or trust.
As with any attempt at settling a legal dispute, what happens in a mediation session is confidential and cannot be used against a party at any time. Mediation offers the parties an opportunity to be heard by an entirely neutral mediator, who has no vested interest in the outcome and is not at all judgmental. The parties also have a chance to hear one another in a setting that is not constrained by the rules of evidence or restricted to legal arguments or positions. Their attorneys also play an important role in getting the problem resolved, and in helping their clients work out a mutually satisfactory, interest-based resolution of the dispute. Sometimes that solution is something that is creative, outside-the-box, or just beyond the remedy available through litigation. With a mediated resolution of a legal dispute, everybody feels like a winner -- because nobody is a loser.