Collaborative Estate Law
A significant area of practice for me is Collaborative Law. The idea is that family conflicts, for example between spouses or involving children, or when a family members dies, are not best handled in Court where the process is based on parties attacking each other, trying to put each other under threat, and "win".
Collaborative Law is a structured process in which each party has a collaborative trained attorney, and the process proceeds to resolution through meetings led by a mental health practitioner as the Facilitator. We will usually include one Neutral Financial Professional to address the financial issues.
Each of the professionals operates under additional rules of ethics, in addition to the rules attorneys follow in other matters such as litigation. Ethical rules in place for the Collaborative Process provide that the professionals assist clients in seeking a resolution fair to all, with all making full disclosure, and none seeking to take advantage of mistakes or oversights of the others.
In my opinion, just as family court is not the best place to resolve family law disputes, with spouses or parents attacking each, I believe probate disputes, or other disputes over estates, trusts or appointment of guardians for children, are not best handled in Probate Court. Unresolved family conflict can come to the fore when a loved-one dies, or in disputes regarding money in an estate, and the family battles that can ensue can be destructive for all involved.
In addition to the distress and conflict for family members who may still be grieving the loss of a parent, while they're also pulled back into unresolved family conflicts, the process can be expensive, often consuming significant portions of an estate, as can be true for divorcing couples fighting over the marital estate.
There is significant research regarding the effectiveness of Collaborative Law in the context of divorces primarily, and other family law matters, and the research there consistently shows success rates of approximately 90%, with success defined as complete resolution of all issue.
For a conflict, for example over probate of a Will or disposition of assets in a trust, rather than each person hiring a litigation attorney, sending threatening letters, filing motions, and going to war, a Collaborative Law process would first involve, either by initial consultations with attorneys or sometimes by first meeting with a mental health or financial professional, each person retaining a collaboratively trained attorney.
The attorneys then along with the Facilitator and often a Neutral Financial Professional, would meet to discuss how to best move the matter forward to resolution. Often we include a Neutral Financial Professional because if there are financial issues involved requiring a review of source material or any forensic accounting or analysis, it is more efficient for the Financial Professional rather than attorney's to do that initial analysis; versus also the typical scenario in litigation in which each "side" hires a financial person, who not surprisingly end up with different results, and then part of the ensuing war involves dueling financial experts as well.
Part of the process with which the Mental Health Facilitator helps is addressing each person's concerns, versus each party to litigation staking out their positions and attacking others to defeat their opponents'positions. It may be difficult to see, but the process of discussing and addressing concerns or the interests of each person, can open up options for resolving the dispute. And, as indicated, the historical success rates in family law litigation, a no less conflictual and adversarial area, have been 90%.
As part of your Estate Planning, one option is to require Collaborative Law as a process for your heirs resolving disputes, prior to initiating litigation.
Call me at (954) 636-7498, or use the Contact form on the website, and we can discuss Collaborative Estate Law as a process for resolving probate and estate disputes for your family.