More Than Divorce, Collaborative Law in Probate May Be For Trust Contests and Estate Disputes

Collaborative law is common in divorce and family law issues, and also effective in probates, estate contests, trusts contests, and guardianship and conservatorship disputes. I like to say that probate cases are much like divorce – but on steroids. In a typical divorce, people have usually been in the same family together for 20 to 30 years, maximum. In probate cases, people have shared the same family dynamic for 40+ years, which is a lot of time for negative feelings to develop before a probate case starts.

Collaborative law is an out of court process, much like mediation. Collaborative law is ideal where people disagree about an issue that holds high stakes, but requires continuing cooperation. Typically, in adversarial litigation, there is no “buy in” by litigants affected by a court order. When litigants don’t like court orders, they sometimes won’t follow them. Or, conversely, litigants will follow court orders, but in such a way that conflict does not resolve. After all, a court order does not automatically reduce conflict.

Collaborative law for probate cases can save a family of adult children from fighting and in essence, breaking up. Collaborative law can prevent squabbling among adult siblings over the care of an aging parent in a guardianship or conservatorship. It can also create an agreement as to how to use funds from a trust or will. Probate cases can be very expensive in attorneys’ fees. Collaborative law, also called collaborative process, in probates can prevent your money from being wasted on attorneys’ fees and litigation.

If you are currently a litigant in a probate case, like a guardianship, conservatorship or estate contest or trust contest, collaborative law is an option. There are a few ways an estate contest case can become a collaborative law case. But first, let’s review collaborative law cornerstones.

What Are The Collaborative Law “Cornerstones”?

Collaborative law cornerstones are the underlying agreements that are present in every collaborative law case. The collaborative law rules don’t change from case to case. In every collaborative law case I handle, these are the agreements we make:

1. Create a written agreement between all parties to a conflict promising to stay out of court;
2. Each side hires an attorney.  That means that for every person affected by the probate dispute, there is an attorney representing them.
3. If anyone takes unilateral action (goes to court to ask the judge for relief) the process terminates.
4. The lawyers cannot represent their clients in contested court proceedings once the collaborative law agreement has been signed.
5. There is full transparency. All the “discovery” that takes up time and money is gone. All cards are on the table.
6. What happens in collaborative process stays there. If you leave the process, you cannot take the information you learn with you.

What if you can’t trust someone to be honest? I don’t think that automatically disqualifies a case. In fact, I look to the lawyer for that person. If a lawyer has what I call “client control,” then I am not concerned about whether their client will tell the truth. If people refused collaborative process because the other side was too high conflict, no one would use collaborative process. I currently have 7 collaborative law cases, so I know people are using collaborative process!

If you want to transition a litigation case into a collaborative law case, first decide whether you can abide by these cornerstones. Then, look at whether collaborative law is right for your case. You have to be safe sitting in the same room with the other person or people. If you think they will harm you, collaborative law probably isn’t right for you. There may be settlement opportunities in your probate or trust contest case. If the other side wants to talk about settlement, using collaborative law may be the best way to break down longstanding barriers. If any lawyer in the case knows about collaborative law, the lawyer can initiate a conversation about collaborative law.

When Is Collaborative Law Right For A Probate Case?

Once you understand collaborative law, you can decide whether collaborative law is right for your probate case. In my experience, about 85-90% of cases are appropriate for collaborative law. Again, you’re looking for any situation where people share a high stakes, hard-to-divide interest, and they must cooperate.

Other lawyers around the country share the view that collaborative law can be a great way to resolve trust and estate disputes outside of probate court. Juan C. Antúnez is a partner with Stokes McMillan Antúnez P.A., a boutique trusts and estates law firm located in Miami, Florida.  Mr. Antúnez position on collaborative process for trust and estate disputes is here:  https://www.flprobatelitigation.com/2018/09/articles/mediation-arbitration/collaborative-process-are-the-probate-and-trust-disputes-on-the-horizon/.

The “collaborative process” is an interesting dispute resolution alternative that’s been used for years — with great success — in the family-law context.

An important tenet of collaborative law is that, should the collaborative process fail, the parties’ lawyers and law firms are disqualified from subsequent litigation. In my opinion, this dynamic changes everything.

I think collaborative law could be the next big thing for resolving trusts and estates cases (which are almost always family disputes of one kind or another)…

Morgan & DiSalvo, P.C., attorneys in Alpharetta, Georgia, have also adopted this position about collaborative law for probate cases:

When we…learned that a number of collaborative law practitioners were trying to develop collaborative law approaches for estate and trust disputes as well as business related disputes, we leapt at the chance to be in the forefront of this expansion.

Judy Whisnant, of Durham, North Carolina, says this about collaborative law:

This process most often results in a better solution than one imposed by a court because it’s truly tailor-made by the people whose lives will be affected by it.  This process saves time and money, because it is more efficient than litigation and can work much more quickly. Best of all, it protects, and sometimes even starts to heal…

You have one family of origin. Your sibling relationships cannot be replaced. You can build other relationships, but if there is a possibility of salvaging those relationships, and saving the estate money, would it make sense to try? Your case can become collaborative if you are safe to sit across the table from the other party. Your case only needs lawyers who are willing and able to convert the case to a collaborative law case.

What If You’re Already Involved In A Contested Probate Case?

Is there a way you can intervene and check out of the litigation process if you have already started litigation? You can always start collaborative process. One of the most beneficial aspects of collaborative process is that it meets you wherever you are. Morgan & DiSalvo discuss the benefits of collaborative process over mediation in contested probate cases:

[C]ollaborative law offers potentially greater benefits than either arbitration or mediation. …[Y]ou should consider collaborative law as an approach where, from the outset, the goal of all of the parties is to come up with a negotiated settlement that they can all live with. Because the collaborative law approach requires a significant shift away from the traditional, litigation-oriented manner in which most attorneys are trained, lawyers who wish to practice the collaborative approach must be specially trained and certified in collaborative law. At the beginning of a collaborative matter, the parties and their lawyers all agree to certain rules regarding the sharing of information and documents and the manner in which all will approach negotiations and other interactions. These rules include a requirement that, if the parties are unable to reach a final agreement through the collaborative approach, they must all hire new attorneys and new experts before they will be able to proceed with litigation. These rules, and the requirement that none of the professionals involved in the collaborative process can move with the parties into a subsequent litigation, are intended to help set the appropriate tone of cooperation and openness.

Winthrop & Weinstine, a Minneapolis law firm focusing on estate contests, also outlines the terrible consequences to families from trust and estate contests:

Family dynamics, emotions, and high financial stakes make trusts and estates disputes especially challenging for all those involved and the number of these disputes is only increasing.

For people facing a contested litigation case, sometimes it is not possible to transition from litigation to collaborative process. Checking out of litigation and into collaborative law may be hard if your lawyers don’t know about collaborative law. Suggest mediation with an experienced collaborative professional who can educate everyone in the case.

What if you are an estate planning client or attorney who wants to ensure collaborative process is used for your estate? You can actually mandate that your beneficiaries use collaborative process in the event of a dispute.

Clear Estate Planning Instructions Are Necessary to Ensure Your Estate Is Properly Administered

The right estate planning lawyer is looking out for not only you, but your heirs and beneficiaries. The right estate planning lawyer knows how contentious trust and will contests can become. Abigail Neal, my former law partner, explains the power of a trust:

While trusts are often beneficial for larger estates, those with modest estates can also benefit from a trust. Avoiding probate, specifying how and when assets are distributed and creditor protection are advantages everyone can benefit from.

You can keep decision making in your family’s control by designating a dispute resolution process that will guard your resources. You may even protect your pets in the event you become incapacitated or you pass.

Michael A. Zeytoonian, Founding Member of Dispute Resolution Counsel, LLC, offers collaborative law for dispute resolutions. Mr. Zeytoonian explained that:

One main purpose for estate planning or business succession planning is to keep control of the decision making in your hands, rather than turn it over to a third party like a judge, jury or arbitrator.

When you prepare your estate plan, ask your lawyer to include a collaborative law clause. You don’t want your kids to fight over money. You worked hard to raise them, and to create a sense of family and security among them. Collaborative law is a preventative tool to avoid estate planning disputes. The transparency aspect may not only save your family. The collaborative process could conserve your resources if you are incapacitated and money is needed for your care. Make your resources last, and keep everyone on the same page about each step of your estate administration.

Moshier Law does offer this language to other counsel who seek to prepare an estate plan. We also offer dispute resolution for probate cases using collaborative law. With 18 years experience in California and 12 years in Arizona, we have been practicing collaborative law for eight years. Call us today at 480-999-0800 to talk further about collaborative law for your legal case.