Collaborative Estate Law
It is important to discuss the potential risks and benefits of Collaborative Estate Law for your circumstances, but I believe Collaborative Law is a better option for most estate, trust and probate disputes. There will be additional considerations if a dispute includes third-parties such as creditors in addition to family members.
This process is helpful as an alternative to adversarial litigation. It is helpful also for families not anticipating litigation but who have developed conflict among themselves as they work through probate or trust issues -- for example situations in which there is a family member as personal representative and trustee perhaps being advised by an estate attorney, or circumstances where there is professional fiduciary in these roles. It is important, in my opinion, to look at the advantages of a process that avoids litigation or operating under the threat of litigation.
There are good options also to use as part of your estate planning, to help avoid conflict among your heirs in the future (described toward bottom of this page).What Is Collaborative Law?
Collaborative Law is a process that has become a formal part of the Florida statues and court rules for divorce and other family law matters; and although there is no similar Collaborative Law Process Act yet in the estate, probate and trust statues, the process has applicability here as well.
Collaborative Law is a structured process in which each party (with some exceptions) has a collaboratively trained attorney, and the process proceeds to resolution through meetings, usually led by a Facilitator if there is significant conflict.
Each of the professionals operates under additional rules of ethics, for example rules in addition to the Rules of Professional Conduct applicable to all attorneys. 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.
When people choose the Collaborative Law process this is what they are hiring their attorney to do, what the attorney is retained to do. For families that are working on resolving their estate disputes themselves, perhaps with the help of a professional personal representative/trustee, or a probate and estate attorney advising the family member who is serving in these roles, this Collaborative process described here helps resolve in a more positive way conflicts the family may have over the estate.
The idea is that family conflicts are not best handled in Court, and that disputes over an estate can cause conflict for a family even if they handle the dispute without active litigation. Unresolved family conflict can come to the fore when a loved-one dies and in disputes regarding property in an estate, and the family battles that can ensue can be destructive.
In addition to the distress for family members who may still be grieving the loss of a family member while they are pulled back into unresolved family conflicts, litigation can be expensive, often consuming significant portions of an estate.
For a professional personal representatives or trustees working with families, turning to Collaborative Estate Law can help ease the distress for the family, and is almost always less expensive than contested litigation.
In circumstances where a family is handling a matter outside of court without active litigation, the battles can still be distressing. Collaborative Estate Law can be an alternative to make this less destructive — at its core Collaborative Law is a structured process to help turn participants back towards resolution (as peaceful as possible) and away from increased conflict.How the Process Works
There are professionals from different disciplines who are trained in Collaborative Law who can be part of the process — collaboratively trained Attorneys, Financial Neutrals/ experts, and Facilitators/mental health professionals. A Collaborative process can begin in different ways, and the professionals who will work with the family and make up the professional team can vary also.
Attorneys, Financial Neutrals and Facilitators each have their own set of professional skills and training, but we all take the same Collaborative Process training and work together. It’s important to note that the therapists or psychologists who serve as Collaborative Facilitators are not doing therapy in the Collaborative meetings, but rather as their expertise and along with the other professional, help to keep the process moving forward in a positive way.
A Collaborative matter can begin in a number of different ways, and include varying combinations of the different Collaborative professionals.
A Collaborative matter could involve the family members, together and/or separately meeting with a Facilitator, to help work out a resolution of diﬃcult issues for the family, which are standing in the way of the family’s fully settling the estate or trust and maintaining their relationships.
Or, parties could meet with a Neutral Financial if there are primarily financial questions in dispute, who could look at the financial issues and propose ideas for the family.
Sometimes, parties will begin by talking with a Collaborative attorney, and a matter sometimes can be resolved by a meeting or meetings among the Collaborative attorneys and family members. Where there is significant conflict it will be better to have a Facilitator as part of the team; and when there are complicated financial issues to bring in a Financial Neutral also.
The role of your attorney in a Collaborative matter is to provide support to and advise you individually, provide the answers or conceptual framework of how to view what is going on within the context of estate, trust, and probate laws and rules, and help along with the other members of the Collaborative team in coming up with options, based on experience with other matters. In a Collaborative Law process the parties are not required to look to what the law would provide — they can ground their decisions in what they as a group decide is fair, but “the law” sometimes can provide a context that is helpful.
It is important to remember that your attorney in a Collaborative Estate Law process, if you choose that process, is not there to assist in seeking a solution with maximum advantage for you at the expense of all other parties involved, but rather a resolution that is fair to all. Or rather a process that provides an opportunity to address each person’s concerns, and attempts to meet each person’s concerns as much as possible. Getting into the territory of what is “fair” can be diﬃcult — there are usually many views as to what is fair and debating what is fair can feed right into the issues in dispute. It may be diﬃcult to see, but when anger and the need to defend decrease, and everyone seeks resolution, it can be possible to come up with ideas of how to resolve and move forward.
I wouldn’t describe myself as an especially new age person, but approaches like meditation or something called tapping are designed to help with that — i.e. helping decrease anger and stress, to allow a different way of looking at things, and new ideas. There’s research that these approaches can even affect us at the level of our DNA, by changing how genes are “expressed”.Collaborative Law Versus Litigation
As I was discontinuing taking on new litigation matters, I discussed with a litigation colleague my concern with attorneys in litigation matters making self-serving statements, seeking an unfair resolution in their client's favor at the expense of everyone else, and even at times seeking to color the facts of the case, in a way that ended up advancing positions on the facts that were not accurate — and my colleague responded, indicating that I somehow wasn’t quite seeing or had forgotten that yes, that is what happens in litigation.
Litigation can be an unpleasant process that drains significant energy. Many businesses look at the time, money and energy outlay as a significant transaction cost of ending up in litigation — it takes significant time and energy away from other more productive or positive pursuits, in addition to causing distress. When litigation leads to hearings or a trial, and as parties become increasingly committed to winning, it often if not virtually always devolves into significant and escalating rounds of alleging the fault or wrongdoing of other parties —including veiled hints at alleged criminal activity.
I recall a primer on negotiation within the litigation context explaining negotiation as being based on demonstrating first to your adversary how you can harm them — in litigation what you can take from them, the severe risks you can create. This involves a similar process as described in one of the models for identifying and analyzing abusive relationships, and forms the basis in my opinion of viewing litigation as often involving similar dynamics. Here is a past blog post which addresses this issue and the Collaborative process as an alternative
The dynamics for families not involved in active litigation, although different, can be extremely distressing as well; and it is important to remember that when families are in conflict over an estate or trust, there is always the prospect of litigation in the background — to approve an informal accounting of assets and settlement if parties arrive at one, or the prospect of contested, adversarial litigation if family members do not agree to an accounting and settlement of disputed issues.Diﬃcult and Necessary Conversations
As part of the Collaborative process, there is support and structure to assist family members in having diﬃcult conversations, which otherwise may end up not happening and as a result could prevent families from resolving conflicts, or prevent resolution in a way that avoids damage to relationships. As the article in this link suggests, a way to look at these conversations is that they are often diﬃcult, but also necessary conversations. Sometimes these are referred to as essential conversations.
The conversations can be avoided, but I have both seen and heard recounted to me numerous conflicts arising out of an estate dispute between family members that lead to lifetime rifts in relationships that are never repaired. The underlying conflict may have already been there, but relationships and contact still had been maintained until the anger and hurt feelings from the estate conflict.
In Collaborative Law, in the process of addressing the concerns of each person, sometimes people find a way to and decide they want to provide what is important for each.Research Regarding Effectiveness
In the context of family law disputes (primarily divorces) there is significant research that consistently shows success rates (last paragraph of this blog post) of approximately 90% for the Collaborative Process, with success defined as complete resolution of all issues. And a goal for settlement, in addition to resolving the issues in dispute, is to preserve or even improve family relationship; and avoid some of the distress and negative emotions that arise from a dispute among family members over an estate or trust.Professional Fiduciaries
For professional personal representatives or trustees working with families, Collaborative Law can be an option to offer as an alternative to litigation; or an alternative to the professional fiduciary seeking to resolve the issues with the family members in separate, adversarial camps, versus coming together to resolve.Cases With Creditors
In some estates there will be creditors asserting claims in probate. Collaborative law is used in the context of civil law disputes, and creditors if they choose, could agree to use Collaborative law to resolve their claims. Where claims of third parties are resolved outside of a Collaborative process, the family and other beneficiaries could still use Collaborative law to resolve their disputes.Collaborative Law as Part of Your Estate Planning
As part of your Estate Planning you can have a conversation with your family members, to explain what you are doing with financial matters and health care decisions, your wishes, and what is important for you, to help make things clear and help avoid future conflicts.
This type of conversation sometimes could be positive — a chance to discuss important values and thoughts to pass on, but sometimes could be a diﬃcult or diﬃcult and necessary, essential conversation — to address issues now, versus later with more conflict among family members in the future. In can be helpful to have this conversation led by your attorney, but often would be helpful to have it led by a Facilitator.
Another idea to consider as part of your Estate Planning documents, is to require a process like Collaborative Law or meeting with a Facilitator if your heirs develop conflicts over your estate.
Please call us at (954) 636-7498 or use the Contact form here on the website, and we can discuss Collaborative Estate Law as an option for you probate, trust or estate issue.