New York Estate Planning & Elder Law Blog
Although passing an estate through probate can be an unnecessarily long and expensive process, it is usually an administrative task through which heirs receive their inheritance as the deceased saw fit to award. However, family dynamics can complicate the expediency at which executors are able to pass some estates through probate, leaving the courts, rather than the deceased in his or her last will and testament, to ultimately decide which heirs or other interested parties receive certain portions of the estate.
Instead of using the courts to settle these types of disputes, families should consider mediation as an alternative to expensive and time consuming litigation in front of judges with already heavy caseloads. Mediation is a type of dispute resolution where both sides meet with an independent party to help negotiate a settlement to the matter, out of court and without the need for extended litigation and costly legal fees.
Often times, disputes over who gets what during the probate process are the manifestation of long standing animosity between family members or individuals close to the deceased. While mediation has no authoritative decision making over who gets what, it can be beneficial because it allows both sides to keep control over their position, is less confrontational than a courtroom setting, and can preserve familial relationships by resulting in wins for both sides, rather than victory for one party and a defeat for the other.
A similar form of alternative dispute resolution is called arbitration. This differs significantly from mediation in that while there is a still a neutral third-party hearing arguments from both sides over the matter at hand, the decisions that this individual renders is effectively permanent and binding. Even though this may seem fitting to resolve the matter out of court, mediation may work better because it can help sift through the emotional component at the heart of the case and serve more than to decide who gets a particular share of an estate.
Of course, the best way to pass an estate through probate is to avoid mediation and arbitration altogether. One way to do that is for the person leaving his or her estate behind to have open and honest conversations about how the estate is to be split amongst family members, allowing heirs to process the information while the testator is still alive. This way, families have more time to work out their disagreements and potentially avoid creating drains on time and resources.