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.