Probate and Trust Litigation Avoidance: The Collaborative Approach


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Need for Trust and Probate Litigation Avoidance

Most trust and estate litigations can and should be avoided. The financial and emotional toll of probate litigations is much too high.  Estate planning professionals are trained to optimally preserve, protect, and transfer wealth–not to suffer as bystanders while their clients’ wealth is dissipated through costly courtroom battles. Some planning professionals also have formidable courtroom skills, but not many possess the full spectrum of skills necessary for successful probate litigation avoidance. All know that when it comes to avoiding will contests and fiduciary disputes, an ounce of prevention is worth a pound of cure.

The Collaborative Approach

One method of minimizing later conflict is to adopt a collaborative approach to inheritance litigation avoidance. This calls for a multidisciplinary collaborative approach calibrated to the magnitude of the assets involved. Which disciplines should be called upon will depend upon the particular family situation. Valuable contributions may be made by business advisers with expertise in family businesses, wealth managers, psychologists and social workers, eldercare professionals, and highly experienced litigators who can recognize danger signs and propose solutions.

Working as a team with the estate planning professional a “threat assessment” can be made, trouble spots identified, and creative solutions devised. In some instances this interdisciplinary team may be most effective working with and through the estate planner. In other instances some or all members of the team may be called upon to work directly with the potential or actual disputants. It may sometimes be helpful if the group, including counsel, pledges no involvement in any subsequent litigation if agreement cannot be reached.

Early Intervention Desirable

As regards timing, the earlier the intervention, the better. Each family situation is unique and there are no cookie-cutter solutions. In those situations that are headed for conflict, the estate planner may see the storm clouds on the horizon while the testator is still alive and well. In such instances there may be value in the testator explaining, for example, that a provision in the estate plan is not a sign that he or she favors one sibling over the other, but merely a recognition of their differing needs. Family counseling may help reconcile estranged relatives to the point where they will not need to act out their conflicts through estate litigation. A family business adviser may offer proposals for passing on a family business in a way that is both fair to all concerned, yet gives the business a chance to succeed. Perhaps an experienced litigator can identify the choice of a trustee, despite that person’s unquestioned competence, as a potential lightening rod for contentiousness due to his or her perceived favoritism toward one of the beneficiaries.

The collaborative approach has been successful, at times, in avoiding matrimonial litigation. When selectively employed in the planning and probate context, it has a place in the avoidance of costly, public, and protracted trust and estate litigation.