28th Jan 2013
Probate is a process by which the courts oversee the transfer of the estate from the deceased owner to his beneficiaries. Since the process can be time-consuming and costly, individuals do their estate planning with a view to avoiding probate. One of the factors that can lengthen the probate process is disputes among beneficiaries and heirs. When an estate undergoes probate, the heirs may seek ways that can speed up the probate process. For this, myself as a California estate planning attorney I recommend mediation.
Mediation is a non-binding process wherein a competent mediator performs the role of an impartial facilitator between disputants them reach an amicable resolution in their disputes. The mediator is not the person who resolves the dispute; the disputants do. The mediator simply helps to find an acceptable resolution between the parties. In fact, the mediator does not impose a solution to the parties. The parties themselves must find a mutually-acceptable resolution.
The mediator generally does not communicate with the court. In other words, the mediation process is treated as confidential. The proceedings are not admissible in court and are not subject to scrutiny. This feature should make mediation attractive since the transparency of probate is one of its drawbacks.
As an estate planning attorney in Orange County I especially recommend mediation when emotions are getting high and in the way of an effective resolution. A good mediator can hear the parties out and help formulate a compromise resolution and help them communicate with each other in a constructive and civil manner. However, mediation is not recommended for all probate disputes, especially, if the disputants are not unyielding or if one party has an undue advantage over the other parties.
If you are considering mediation, you may choose a mediator from a list provided by the court. Such a mediator must be paid on the regular fee that he charges. However, it is possible that the court may ask the disputants that the fee be taken from the Trust or estate. It is also possible that the mediator may be asked tip render his services on a pro bono basis. Hourly rates for mediators on the court’s list range from $200 – $450. Rates for private mediators may be higher at from $200 to $1,000 per hour.
Even as an informal process, people involved in the dispute are required to attend mediation meetings. This includes the disputants, legal counsels and other individuals authorized by the disputants to resolve the case. An estate planning attorney can help you with legal advice if you one of the disputing parties seeking mediation.
Before the mediation session, you should meet with your lawyers and understand that it is confidential and non-binding. Civility and mutual respect are essential. Avoid hostile tactics as these will most likely make the parties harden their positions and hinder a possible compromise.