A Better Process for Resolving Family Disputes Relating to the Distribution of the Parents' Estate
Navigating a Traumatic Time:Navigating the unintended conflicts created by your parents’ will, trust, and/or other estate planning can be, for many, one of the hardest, most emotionally traumatic periods of life. A person can find himself or herself simultaneously coping with the grief and loss that attend the death of a parent, trying to process his or her emotional response to the way the estate is being distributed, struggling to sort out the time consuming and unfamiliar chores attending a death, and having to navigate both expected and unexpected conflicts with your siblings.
Complex Conflicts:And conflicts with siblings over estate distribution issues are rarely simple matters. If the parent suffered a prolonged illness prior to death or if some of the children do not live close by, the sibling who took on responsibility for taking care of the parent may feel unappreciated or unfairly treated. At the same time, siblings who live far away, may feel distrustful and out of the loop. Likewise, each sibling’s experience of his place or roll in the family may be re-engaged following the death of a parent and the pain of old, unresolved wounds may be renewed. Ineffective or unconstructive patterns of communication between family members can contribute a further layer of stress, misunderstanding and emotion. And then differences in each sibling’s standard of living, income, state of residence, family obligations, and future plans can make it hard for all to understand and approve of the way the others wish to handle their portion of the estate assets.
Hope Arrives:The good news is that simply identifying the complexity of such conflict opens a way to reduce the pain it causes. It does so by helping a person to immediately grasp the value of finding a conflict resolution process that respects and knows how to guide people through the conflict’s deeply human dynamics. When you are able to clearly describe the thing you are looking for in this way, you are on the verge of finding it. Suddenly, there is hope that there is a way to get your needs met and for healing in the family to occur.
The Wisdom of Proactive Estate Planning in Collaboration with Family Beneficiaries
A small minority of parents involve their children in their estate planning process. The reasons for this fact are understandable, but not sufficiently well founded to make this trend a smart one.
Sources of the Traditional Route to Estate Planning
Often, the estate planning process is initiated while the children are still too young to be able to meaningfully contribute understanding of how the estate plan might best meet their needs. For a time, it is true, the parents know best.
In addition, people often feel reasonably well justified holding the view that the fruit of their life’s labors is theirs to do with as they please. The children should appreciate the gifts they receive, not seek to tell the parents how to make them.
And then, the habit and, indeed, ethics of legal practice have long required avoiding representing multiple interests. An estate planner serves the individual seeking a plan for distributing his or her estate, not the estate’s beneficiaries. The inertia of habit and the simplicity of serving a single interest funnels estate planning out of earshot of the children in a way that reinforces a sense that the estate plan is none of their business.
There is no need to quarrel with the reasons that estate beneficiaries are not allowed or invited to participate in the estate planning process. All of these reasons can be legitimate and still fail to serve the real interests of the individual that needs a plan for distribution of his or her estate among his or her heirs and beneficiaries. And the reason the traditional way of doing estate planning often fails to achieve its desired result is simple: it assumes that the parties receiving the estate gifts will embrace the estate plan without having been involved in its creation. This is an unwise assumption.
Just think of how often much smaller gift giving goes awry. Think of the long return lines in the department stores the day after the Christmas holiday, for example. And this is after Santa has gone out of his way to invite children to write him letters telling him what they want!
By creating and holding a caring, attentive and inquiring communication space where all can feel equally respected, free and encouraged to speak their truth in a confidential setting;
By facilitating a multi-party communication process aimed at giving each family member deeper satisfaction that he or she really has been heard and understood;
By identifying and distinguishing between the different positions held by respective family members and the core needs those positions are intended to satisfy;
By facilitating exploration of each others’ core needs as a means for creating more opportunity for creative solutions that address the diverse range of interests represented among the whole family;
By identifying and discussing different standards and processes for evaluating the merit of proposed solutions;
By helping the family apply those standards as a means of coming to and refining an agreement on a plan for addressing the issues at hand;
By facilitating the development of a plan for implementing the solutions agreed upon;
By assisting the family in formalizing the agreement;
By fostering an environment in which family members have the opportunity to heal old wounds, apologize for any past wrongs or regrets, and overcome childhood or other patterns that no longer serve a useful purpose;
And by creating an opportunity for training and practice in more constructive communication patterns that will serve the family well when faced with other difficult issues in the future.
Advantages of Mediation
More Durable and Reliable Solutions:Mediation provides a safe and attentive space and process for each side to hear from the other the difficult things that often go unspoken in unmediated negotiations and that often are essential to reaching a wise and durable agreement.
Party Control over Process and Outcome:In mediation the parties control whether they reach agreement and what its terms will be. The parties are less likely to support the terms of a court-ordered solution they did not agree to or help craft.
Bad Behavior Discouraged:As a collaborative process, mediation discourages bad behaviors common in litigation, such as concealing information, overstating one’s position, and causing the other side needless expense.
Empowered by Personal Sense of Fairness:In mediation the parties can make their personal sense of fairness the most important factor determining the terms of their agreement. In court, they are at the mercy of how the judge interpretats the law.
Establishes New Patterns for the Future:The mediator helps participants let go of unconstructive communication patterns in exchange for healthier patterns that can improve the family's ability to handle future problems.
Economical, Efficient and More Satisfying:In litigation, one risks increasing animosity in a drawn-out fight costing more in attorney fees than is in dispute. Mediation, by contrast, often achieves mutually agreeable outcomes far more quickly at far less cost while helping heal old wounds.
Proactive Opportunities: Mediation may be used proactively to help parties better understand each other and so craft a creative agreement that will serve as a strong foundation for the future of their relationship. It is far better to talk about a conflict now than to live it later.
Hank Edson, J.D.
Proprietor of Family Tree Mediation Serving Redwood City, Atherton, Menlo Park, Palo Alto, Mountain View, Los Altos and the wider Peninsula & San Francisco Bay Area.
Navigating a Traumatic Time: Navigating the unintended conflicts created by your parents’ will, trust, and/or other estate planning can be, for many, one of the hardest, most emotionally traumatic periods of life. A person can find himself or herself simultaneously coping with the grief and loss that attend the death of a parent, trying to process his or her emotional response to the way the estate is being distributed, struggling to sort out the time consuming and unfamiliar chores attending a death, and having to navigate both expected and unexpected conflicts with your siblings.
Hank Edson, J.D.
