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Probate and Trust Mediation

Probate and Trust Disputes

Probate and trust disputes can arise in a variety of circumstances. The classic case would be a will contest or a contest of a revocable trust. With a will contest, the parties disagree about whether a particular will is valid and should be admitted to probate, where it would govern the decedent’s estate. With a contest of a revocable trust, the parties disagree about whether the revocable trust is valid and should govern the disposition of the decedent’s estate.

Often however, disputes arise between beneficiaries and fiduciaries. If the dispute is in probate, the heirs of the estate or the beneficiaries under the will may be dissatisfied with the manner in which the personal representative (i.e. the executor) is managing the estate. If the dispute relates to a revocable trust after the grantor of the trust has died, the beneficiaries of the revocable trust will frequently be frustrated with the length of time it is taking to get the trust assets distributed, or with the inadequacy of information that is forthcoming from the trustee. If the dispute relates to an irrevocable trust, the beneficiaries may be unhappy with the trustee’s investment performance. In extreme cases, the beneficiaries may have reason to believe that the trustee has engaged in self-dealing.

What is Probate and Trust Mediation?

Probate and trust mediation is a voluntary process by which a trained mediator facilitates communication between the parties in an effort to reach an agreement that is acceptable to all the parties. Mediation is generally preferable to a court trial for several reasons:

First, a trial will often produce an all-or-nothing result for the parties. A successful mediation, on the other hand, results in a mutually acceptable solution that can be customized to satisfy all of the parties’ interests.

Second, litigation is an expensive process that can drag on for years, but mediation has the potential to resolve the dispute quickly and efficiently.

Third, where tensions can become inflamed as the litigation process winds its way through the courts, mediation offers a way for the parties (who are usually family members) to come to a better mutual understanding of their respective positions.

Fourth, mediation is largely risk-free. Nothing that transpires in mediation is binding unless and until the parties sign a settlement agreement. Everything that is said in the mediation is confidential. And the mediation may be terminated at any time by any party. If mediation fails, litigation and a trial are still an option.

Thus, by attempting mediation before going to trial, the parties have an opportunity to reach an agreement by which they will all be better off than they would be if they went to trial first.

In a mediation, the mediator is a neutral, impartial facilitator. He or she is not a decision-maker. Even if the mediator is an attorney, he or she may not offer legal advice to any of the parties.

About Rust Tippett

Robert S. (Rust) Tippett is a trust and estate attorney. Mr. Tippett is on the Court Roster of Approved Mediators for the State of Utah, and is a member of the Utah Council on Conflict Resolution.

Mr. Tippett is a partner at Bennett Tueller Johnson & Deere in Salt Lake City. His practice focuses on all aspects of estate planning, including trusts, probate, estate and gift taxation and conservatorships.

Mr. Tippett holds a B.A. from Yale University and a J.D. from the University of Michigan. From 2003 to 2008 he served as an Adjunct Professor at the University of Southern California (USC) Gould School of Law, where he received the 2005 USC Student Bar Association Outstanding Adjunct Professor Award . He is currently an Adjunct Professor at the Brigham Young University (BYU) J. Reuben Clark School of Law, where he received the 2011 BYU Law School Adjunct Professor of the Year Award.

Mr. Tippett is the author of The Utah Law of Trusts & Estates, a comprehensive 700-page legal reference treatise, as well as numerous other articles and papers in the trust and estate field. For more information about Rust Tippett, go to www.utahestateplanning.org.

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