Trusts & Estates FAQs
Trusts and Estates Practice applies the same collaborative strategies used in Collaborative Practice family law matters (such as divorce) as an alternative to the traditional adversarial techniques to resolve legal disputes.
Up to now, the use of the Collaborative Process has been more common in family law matters, but use of the Collaborative Process for estate planning matters is gaining momentum due to its many advantages.
Learn more about Trusts and Estates Collaborative Practice and how it can help you successfully manage your estate planning and avoid expensive, time-consuming litigation while preserving your family relationships from our Frequently Asked Questions list.
Trusts & Estates FAQs
There are several advantages to estate planning using the Collaborative Practice approach, including:
Less Stress on You and Your Relationships: The Collaborative approach reduces stress, anxiety and fears about the process and the outcome of your estate planning, especially if you are concerned about the possibility of litigation over your estate. You can work these issues out in advance, and everyone can focus on settlement feeling fully informed and involved, with more control over the outcome.
Win-Win Approach: Collaborative Practice takes a positive approach and creates a congenial working environment. The opportunity exists for you and other participants to work as problem-solving partners in a climate that facilitates “win-win” decisions.
Flexibility to Create a Solution That Fits You: Collaborative Practice encourages creative solutions in resolving issues, including remedies that may not be available in litigation.
Collaborative Practice Puts You In Charge: The non-adversarial nature of Collaborative Practice shifts decision-making to you along with the support of your Collaborative Practice team, instead of putting decisions in the hands of strangers bound by the rules of a courtroom, often without your involvement or input after your death.
Lower Cost: Collaborative Practice is generally less costly and time-consuming than litigation.
Client Involvement: As a Collaborative client, you play a vital part of the team (consisting of both parties and both attorneys). You have greater involvement in the decision-making and greater control over the outcome affecting your life.
Support From Your Professional Team: You are supported in a manner that allows the attorneys and any other professional members of the team to work cooperatively together with you and your family to resolve issues that might otherwise negatively affect aspects of your life and your relationships, both personal and professional.
Your Collaborative lawyer mediator, financial specialist, and communication specialist help you come to a mutually satisfactory plan, allowing all issues and concerns to be addressed in a respectful way.
In the litigation model, relationships are often ruined over harsh words and treatment that can never be taken back. Parties communicate only through their attorneys and through legal documents filed with the court. In the Collaborative approach, family members talk with each other, assisted by professionals who can facilitate discussion even over the most difficult issues. After issues are resolved, most family relationships are actually improved, moving from indifference or outright hostility to ones of respect and mutual affection.
Litigation can be expensive. It can easily cost $60,000 per side. The usual cost is well over $100,000 per side. Most costs stem from disagreements over sharing or hiding information including documents, preparing for and attending a trial. Everyone’s energy and resources are focused on proving the “other side” is wrong. If expert witnesses are involved, such as a forensic accountant, they can add a significant expense to your cost. There is also the emotional cost and stress over ruining family relationships.
The Collaborative Practice approach is far less costly than a court trial. Information and documents are voluntarily shared with all participants and professionals as a part of the process. No one must be proven “wrong” to “win.” All resources and effort is focused on finding solutions everyone can benefit from and live with. Experts provide neutral information, education, and help create options leading to solutions, instead of gearing up for battle against the expert hired by the “other” side.
If there is litigation over your estate, it can take a year or more from the first filing of a document until there is a trial. Some cases take several years to resolve pending appeals. Your family is at the mercy of the court’s crowded schedule, the availability of the attorneys, and any other involved parties. Much of the delay involves waiting for responses, a judge’s decisions on small issues, or coordinating everyone’s schedules to find a time for the case to move forward. In adversarial litigation, neither side has control over the other, and one side may be dragging their feet with no way to force them to respond.
If you do find yourself in litigation over estate planning, the Collaborative Process can save time. Being solution focused produces a more efficient process where meetings focus on gaining understanding and reaching agreements. Progress is not dependent on a court schedule or a formal legal process. Meeting schedules can be flexible and accommodate work and personal obligations.
With the Collaborative Practice model, all affected family members are informed about your estate planning ahead of time. This gives you and your family the opportunity to resolve any differences or hurt feelings while you are living, instead of creating dissention and resentments after your death. This improves the quality of your relationships and your quality of life while you are living. It reduces the likelihood of litigation to resolve unexpected conflicts. Frequently, probate and trust battles are fought in court over what mom or dad “really” intended to do with their estate. When your estate plan is discussed in an open, respectful forum where you can directly express your intent, it will be difficult for any family members to claim you intended something else.
There should be no unfortunate surprises using the Collaborative process for estate planning, as your heirs will participate in a discussion about the details of your will or trust. With the traditional estate planning model, your will and trust are private documents and nobody may know about them. After your death, they are lodged with the court and become public documents. Anyone has access to them, including your beneficiaries and heirs.
Your Collaborative team led by your Communication Specialist can bring all extended family members together to discuss your estate plan in advance, and allow them to express their expectations. By addressing these issues in advance, hard feelings will be avoided after your death.
All family members or unrelated heirs you invite into the estate planning process will participate in a discussion about your intentions and your decisions, guided by your Collaborative team as neutral facilitators. All conversations are kept confidential without your family and the involved professionals.
Your Collaborative lawyer mediator, financial specialist, and communication specialist can assist you as a parent to discuss these concerns with your children. Your team can create a protective estate distribution arrangement that does not put your assets at risk when your children do not have adequate money management skills, sometimes by assigning a professional to help your children manage their inheritance.
Led by your Communication specialist or coach, your Collaborative team can facilitate these difficult conversations. Through open and respectful discussion, you can make your wishes known and understood to lessen hurt feelings due to surprises after your death. Under the traditional model, you make decisions about your trustee, executor or agent. If you pass over a child who expect to play this role, he or she is likely to resent the person appointed to act in this capacity, whether a sibling or a stranger. He or she may express resentment by pushing back or even resorting to litigation.
Your Collaborative lawyer mediator, financial specialist, and communication specialist can create a Special Needs trust for your children in these circumstances. You can discuss this to the extent you are able with your children and find out who they believe should be in charge of their money and other aspects of decision-making in their lives when you aren’t able to be there, to the extent of your child’s abilities to understand and communicate their desires to you.
Your Collaborative lawyer mediator, financial specialist, and communication specialist will help you work through the ramifications and potential response to your decisions. They can work with you to find creative solutions to provide your heirs individualized bequests which best suit their needs. It is not always “fair” to simply divide up assets evenly. One heir may need monetary help; one may prize heirlooms or property; another may have an emotional attachment to cherished photos or jewelry. Your team can also help you explain your decisions to your family, whether prior to your death or after.
Your Collaborative team can help you set up financial arrangements which directly reimburse or reward one of your heirs for providing caregiving help or for helping you manage your legal or financial affairs as a separate provision of your estate plan. The traditional approach is to let the chips fall where they may and hope everyone understands your intentions.