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5 Key Tips on Trust Mediation & Settlement | CA Estate & Trust Litigation Attorney

Trust Mediation & Settlement | CA Trust & Estate Litigation Attorney

If you are involved in trust or probate litigation in Sacramento, Oakland, San Francisco, Los Angeles or any other California City or County, you may be going to mediation (court-ordered or voluntary). If so, you should be armed with some simple truths about mediation and settlement.

1) What is mediation? Mediation is the process by which a neutral person facilitates communications between two or more disputing parties to assist them in reaching a mutually acceptable agreement. [Probate Code Section 1115]

2) Do Settlement Agreements Have To Be In Writing? A successful mediation is often documented at the end of the process by a short summary agreement - sometimes called a term sheet - signed by all the parties. When this is not practical and the parties otherwise agree, oral agreements can be made on the record and be followed by a writing. The California Probate Code allows the enforcement of such agreements conditioned on:

"All of the following conditions: (a) The oral agreement is recorded by a court reporter or reliable means of audio recording. (b) The terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited. (c) The parties to the oral agreement expressly state on the record that the agreement is enforceable or binding, or words to that effect. (d) The recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded." [Probate Code Section 118]

3) Do Courts Require That Parties Mediate Trust, Estate and Probate Disputes? Estate litigators representing heirs and beneficiaries challenging California Trusts and Wills generally file the Trust or Will Contest in the probate division of the Superior Court in which the decedent lived or the Trust is being administered. Some cases are also filed in the Civil Division of the Superior Court. Courts overseeing such litigation often order the California disputing parties to mediation. Such orders are made to force the parties to try to settle the inheritance lawsuit. Many times there are settlements reached in the Superior Courts.

Hackard Law regularly represents parties in estate disputes. Over the last few years we have represented parties and settled estate and trust-related cases in the Sacramento County Superior Court, El Dorado County Superior Court; Placer County Superior Court; Los Angeles County Superior Court; San Joaquin County Superior Court; San Mateo County Superior Court; and Sonoma County Superior Court. Of course, not all cases settle, and some cases may eventually proceed to trial. That said, in our experience a large majority of cases are resolved prior to trial.

4) Do All Settlement Agreements Have To Be Approved by the Court? Not all settlement agreements need to be approved by the Court, but it is often the better practice to have a settlement agreement approved by the court. Even absent court approval a settlement agreement is a contract and "a deal is a deal." Of course, the contract itself could provide that it is null and void if not approved by the court.

5) Will Courts Enforce Settlement Agreements? When Hackard Law represents clients who become parties to estate, trust and probate settlement agreements we make sure that the Court retains jurisdiction over the settlement. In particular we reference Probate Code Section 664.6 that provides in part: "If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement." It makes little sense to have a settlement if it can't be enforced.

Discovery proceedings generally stop when there is a settlement agreement. This is something that should be addressed. The need to inform the court of the settlement should also be discussed and a plan of action put in place.

You have the right to settle your case, as well as the right to move forward in your trust litigation. California estate heirs and beneficiaries, whether in Los Angeles, Sacramento or the Bay Area, should talk with an experienced trust attorney to understand just what is required to do to meet the terms of a settlement deal. If you're facing potential litigation, take the right steps to prepare: call Hackard Law today at 916-313-3030.

5 Key Tips on Trust Mediation & Settlement | CA Estate & Trust Litigation Attorney from Hackard Law on Vimeo.

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12 Comments

I didn't realize that probate disputes were usually ordered to mediation, as you stated in fact 3. My cousin may be involved in a situation like this, and I think this could help her prepare for whats to come. She would love to be able to settle things without going to court. Thanks for all the helpful information.

I'm glad that the article was helpful. Mediation may be a far better result than protracted litigation. That said "It takes two to tango." While the other party may ultimately be forced to mediate, it may take a bit of litigation to get to that point. Thank you for your comments.

I thought you made a good point about how I should ask whether any probate settlement agreements have to be in writing. I've thought about signing up for mediation, so it helps to know that it will be documented with a short summary agreement. That would be a good way to make sure that all parties are on the same page as far as the conditions go for probate mediation.

It's interesting that not all cases need to be solved in court. Although it may not need to be, having a case solved in court could really help prevent and solve problems. It's definitely something to remember for my dad's death. Thanks for the post!

These are really good ideas to think about when working on a probate. I guess it is good to get things in writing, and if it is an oral agreement to put it down on paper later. I can see that being beneficial since you will have all the agreements on paper for others to see.

Thanks for the advice about getting a mediator and how they help you clear things up through a neutral third party. I'll have to see about getting a probate attorney to help my family clear up some property disputes. Hopefully, we can get a good lawyer and get the whole situation cleared up.

I like that you pointed out how settlement agreements don't necessarily have to be approved by the court, but they probably should be. It can be tempting to just make informal, verbal agreements about what will happen during probate, but such agreements might not hold later on. I'd prefer to get the agreements in writing and approved by the court, even if it takes a bit longer, so I wouldn't face problems down the road. Thanks for the article.

I had no idea that not all settlement agreements needed to take place in court. It's good to know that it can be settled with out spending extra time waiting on court. Asking your attorney how they plan to have your case settled would be helpful to know before hiring them.

I was wondering if a settlement needed to be in writing. My aunt left a big estate behind and all of her children are fighting over so many things in her will. I think they are going to need some serious mediation.

I'm trying to come up with a good way to get probate law figured out. It makes sense that you would want to have an attorney to help! I need help with filing for bankruptcy, after all.

Thanks for sharing some tips for probate mediation. You make a good point about how it is usually beneficial to hire an attorney who can mediate the case for you. I would think that it is a good idea to involve someone who understands probate laws and who can help you through the case.

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