Most of us like to think of our families as tight and caring units. We get together on holidays, special events like weddings and bar mitzvahs, and try to keep in touch with one another about what is happening in our lives. Unfortunately, when someone passes away, such as a parent, the family harmony that we thought existed may quickly dissipate when certain realities become evident. For instance, when the decedent’s assets are distributed according to the decedent’s will or the terms contained in bank or other accounts, some family members may feel they were treated unfairly or did not receive a promised asset. As a result, an inheritance dispute ensues that can rend a family apart as well as drain the estate and the involved parties’ own funds.
Nature of Inheritance Disputes
Many disputes arise over a cryptic or unclear provision in the decedent’s will over who the intended beneficiary may be or what particular property is the subject of the devise or bequest. But if the will is clear or the beneficiary is clearly identified in the will, trust, retirement or other account, then there is little an unhappy party can do. The courts construe a will according to the testator’s intent and any challenge to that will typically have to be on the basis of lack of mental capacity by the decedent at the time the will was drafted, or that the decedent created and signed the will under fraud, duress or undue influence. Otherwise, it is generally the decision of the executor regarding the decedent’s intent.
Informal Resolution Options
If such disputes arise, it may be best for someone to first attempt an informal resolution of the dispute by getting the family members together and discussing their grievances and the basis of their complaints. Often, there may be issues or some other circumstance that other families were unaware of that are coming to light for the first time.
For some beneficiaries, they may not particularly care for the item or property left to them or they may feel that a brother or sister was not fairly considered. In any event, being willing to compromise can recoup any lost good will among family members and assuage egos, hurt feelings and resentments that could otherwise last for decades or never be resolved. You can also offer to buy or exchange the property if you are the one disputing the will.
If there are legal issues involved, perhaps having the parties agree to meet with an inheritance attorney to ask questions and resolve any legal misconceptions can settle the matter. Many trusts and estates attorneys will be happy to meet with you and your family for a reasonable fee.
Other Resolution Measures
In other cases, the parties may have entrenched emotions and resentments that any informal meeting will not resolve. There are alternative dispute resolution measures that you can use so long as everyone is in agreement. Mediation involves having a neutral third party referee a meeting or meetings among the family members or beneficiaries. The mediator does not take sides and does not hear testimony or consider evidence, but listens to each party’s arguments or assertions and then attempts to iron out a compromise. The mediator can suggest certain options such as relinquishing or trading property for money or some other property or for some other future consideration. If a resolution is reached, the parties should sign an agreement outlining its terms.
In family law disputes, the parties may resort to a process called collaborative divorce where the parties meet to discuss their differences. Often, professionals from other disciplines such as finance or psychology. In an inheritance dispute matter, certain property items may need to be appraised or an inheritance lawyer consulted to clarify the legal issues involved. Nothing is binding in this process and the parties may opt to no longer participate.
One other type of formal resolution is the use of binding arbitration. Arbitration can be costly and many professional arbitration services such as the American Arbitration Association use retired judges or attorneys and charge a minimum retainer before an hourly fee goes into effect, which can be hundreds of dollars. Still, if a family member has retained an attorney and is serious about challenging the will or your handling of the estate if you are the executor or personal representative, then you may expect to spend thousands of dollars in litigation. Using some form of alternative dispute resolution early on in the dispute could save everyone considerable legal fees.
There is no requirement to be represented by an attorney but if a contentious family member has retained one and substantial assets are at risk, then you should have your own inheritance attorney. An arbitration is very similar to a trial with the same rules of evidence applied. Usually, there is discovery before the arbitration so that the parties can see what documentary or other evidence the other side is relying on to support its contentions and what legal defenses are being asserted. Both parties can object to the admission of evidence and each attorney can cross-examine the other party at the arbitration. Any decision is binding and may only be appealed if there is some evidence of fraud or misconduct by the arbitrator.
Otherwise, the probate court may have to resolve any inheritance disputes. As noted, the only issues the court will generally consider regard the validity of the will, if the decedent lacked the mental capacity when the will was drafted or if he or she was under duress or undue influence at the time.