Alternatives to Litigation in a Will Contest or Probate Dispute

When conflict arises in the settling of an estate – especially a high-net-worth estate – the parties involved may look to the courts to help resolve the dispute.

Litigation is one way to settle probate disputes, but it is not the only option, nor necessarily the best. There are alternatives that may offer more favorable results.

A probate litigation attorney can advise you on alternative methods for resolving disputes between beneficiaries, executors, or other interested parties.

Does Consulting a Probate Litigation Attorney Mean I Will End Up in Litigation?

Speaking to a probate litigation attorney does not mean you will end up in litigation. It does, however, mean that you will have an attorney on your side, protecting your rights.

It also sends a message to the other parties involved in the dispute that you are serious about defending your interests and pursuing a resolution. Oftentimes, this alone can be enough to spur the other side toward a settlement.

Here are some alternatives to litigation that may help settle a probate dispute or will contest:

• Informal Negotiation
• Mediation

One potential remedy is for your attorney to engage in informal negotiation with the other side. For example, your attorney can send a letter to the opposing party outlining your concerns and expectations and recommend a path forward. This opens negotiations between you and your attorney and the opposing party or their legal representative.

This informal approach is often less stressful than going through the court system and can be tailored to the size and scope of the specific issues involved. Negotiation can also allow for a greater focus on solutions rather than legal barriers, allowing for creative solutions not available through other means of dispute resolution. Throughout the negotiations, your attorney can help keep an eye on important details that should not be overlooked and ensure that you get the best outcome possible.

If informal negotiation does not lead to a resolution, it may be time to call in a professional mediator. Mediation provides a structured and collaborative process for the parties involved to negotiate a “win-win” resolution, facilitated by a neutral third party.

Like an informal negotiation, mediation also takes place outside of the courts. Unlike informal negotiations, all parties must agree to participate in the mediation process in advance.

What are the benefits of mediation over litigation in a probate dispute?

• Less formal and less expensive than litigation.
• The parties have more control over the outcome since they actively participate in the decision-making process, rather than having a judge make the final determination.
• Mediation is a non-binding process, meaning that the parties are not obligated to reach an agreement, and they can pursue other legal options if mediation fails.
• Proceedings are confidential, allowing for creative solutions that help to minimize risk and litigation costs while keeping the family's business private.
• Fosters open and respectful communication and can help preserve relationships between family members or beneficiaries, minimizing the potential for further conflict.

Generally, here’s what you can expect from the mediation process under the guidance of a probate litigation attorney:

1. Bring all parties to the table: Your attorney can contact the individuals involved in the dispute to encourage a mediated negotiation, or a judge may order mediation in a probate case. All parties must agree to mediation.
2. Choose a mediator: Once all parties agree to mediation, both sides select a neutral third party who serves as the mediator. The mediator should be skilled in facilitating communication, managing conflicts, and understanding probate laws and processes in your county.
3. Hold the initial meeting: The mediator holds an initial meeting with all parties involved to explain the mediation process, set ground rules, and establish an atmosphere of open communication and cooperation.
4. Identify the issues: Your attorney can help you articulate your concerns, interests, and effectively communicate their perspective to the other parties involved in the dispute.
5. Generate options: The mediator helps the parties generate a variety of possible solutions to the probate dispute. This could involve exploring alternative distribution of assets, compromising on certain terms, or finding creative ways to meet the interests of all parties involved.
6. Negotiate and communicate: The mediator facilitates discussions, encouraging the parties to communicate their perspectives, interests, and concerns. They may hold joint meetings or separate sessions, depending on the dynamics of the dispute. Your attorney will advocate for your interests throughout this stage, using their legal knowledge and negotiation skills to seek a solution that is fair and aligned with your objectives.
7. Reach agreement: The mediator helps the parties evaluate the potential outcomes and consequences of various options, encouraging them to find a resolution that is fair and reasonable.
8. Formalize the agreement: Once an agreement is reached, your attorney can document the terms of the settlement in a legally binding agreement. This document can later serve as the basis for legal actions, such as filing a consent order with the court.

In estate cases, mediated agreements are typically called Family Settlement Agreements.

What Is a Family Settlement Agreement?

A Family Settlement Agreement is a legally binding contract used to help resolve disputes or conflicts within a family regarding the distribution of assets or the administration of an estate. It is often a result of mediation or informal negotiation and is a favored method of resolving estate disputes in the state of Texas. Texas law strongly favors peaceable settlement of litigation, and probate cases are no exception.

When Is a Family Settlement Agreement Appropriate?

A Family Settlement Agreement (FSA) may be appropriate when a will is unclear or poorly drafted and family members cannot agree to the distribution of assets.

Other scenarios that may be resolved through a Family Settlement Agreement:

• When there are disagreements among family members regarding the interpretation of a will, the distribution of assets, or the appointment of executors or administrators
• If the family members wish to modify the terms of an existing estate plan, such as a will or a trust, to better reflect their current intentions and accommodate changing family dynamics
• In cases where the intended distribution of assets or property specified in a will or trust is not perceived as fair or equitable by family members, a Family Settlement Agreement can provide a mechanism for negotiating and agreeing on an alternative distribution that is acceptable to all parties involved.
• Family disputes can arise when there are disagreements over the allocation of specific personal property items, such as heirlooms, sentimental possessions, or items with significant emotional value.
• Challenges to the validity of a will, either due to concerns about undue influence, lack of capacity, or other legal issues
• In the absence of a will, the lawful heirs can enter into an agreement to distribute the property differently than what the laws of intestacy set forth
• In cases where a family-owned business is part of the estate and there are conflicts or disagreements among family members regarding the management or succession of the business

Your attorney can review the facts of your case and help you decide if a Family Settlement Agreement is the best course of action. If you decide to pursue a Family Settlement Agreement, your attorney will interact with all interested parties to negotiate the details – either informally or through mediation – and help finalize the settlement.

Let Hendershot Cowart P.C. Help Resolve Your Estate Dispute

We understand that facing a probate dispute or will contest can be daunting, and you may worry that getting lawyers involved will create more conflict.

It is important to remember that speaking to an attorney does not necessarily mean you will end up in litigation. It does, however, mean that you can access the informed legal support you need to take the next step and achieve feel more prepared to take your next steps.

Our Houston-based probate litigation firm can represent clients in Harris, Fort Bend, Galveston, and Montgomery Counties. Call us at (713) 909-7323 or reach out to us online to schedule a confidential consultation.