Incomplete estate planning and conflicting documents may lead to disputes between a surviving spouse and children of another marriage, particularly when significant assets are at stake. These disputes typically are resolved either through mediation, or through litigation in the probate court. If you’re contemplating a second marriage, there are steps you can take to update your estate plans and avoid disputes between your surviving spouse and children from a prior marriage.
StepsMethod 1Method 1 of 3:Using Mediation
1Talk to the other party. Since mediation is a voluntary process, it’s essential that the other party is willing to attempt mediation to resolve the dispute. Emphasizing the benefits of mediation over litigation can help persuade them.XMediation is a collaborative process designed to help both parties find a mutually acceptable solution to their dispute.You have a lot of freedom to be creative with your solution, including finding a compromise that would not be available if you had a judge resolve the matter through traditional litigation.Another benefit of mediation is that all discussions and negotiations between the parties are confidential. In contrast, a probate dispute in court is a matter of public record.Confidentiality may be preferred if you are concerned about sensitive family details being exposed in public court.Mediation also is focused on preserving family relationships. In some situations, there may not be any relationship between the surviving spouse and the children from another marriage that is worth preserving.However, even if there is no love lost between the two parties, other members of the family will be touched by a contentious, drawn out public probate dispute.
2Choose a mediation service. There are a number of mediation services available in most areas from which you can choose, so contact the clerk of the probate court to find out which services are court-approved and recommended for resolving probate disputes.XThe clerk typically will have a list of particular mediators or mediation services from which you can choose.Focus on mediation providers on this list, as they are more likely to specialize in probate disputes. Various mediation services in your area may have expertise in different areas of the law, but you need a mediator who understands probate issues.Depending on the procedures of the probate court where the deceased person’s will has been filed, you may be assigned a mediator, may choose one on your own, or may send a notice to the other party with two or three choices.Once you’ve chosen the mediator, you’ll need to call and make an appointment. The mediation appointment is relatively casual and you don’t need an attorney, but you may want to hire one if you feel more comfortable doing so, or if you know the other party already has hired an attorney.
3Give opening statements. Once you arrive at the mediation appointment, the mediator will provide an introductory statement and discuss generally the mediation process. Then each party will be given the opportunity to tell their side of the story.XXUnlike an opening statement in a civil court proceeding, your opening statement in mediation need not be formal and shouldn’t be adversarial.Simply explain your position and how you’d like to resolve the dispute. Keep your statement civil and avoid making emotional outbursts or personally insulting the other party.It can be helpful to focus on “feel” statements – rather than accusing the other party of holding particular motives or intending to hurt you, tell the mediator and the other party how the actions of the other party make you feel.For example, if you are the child of a previous marriage and your father’s will is being probated, you might say that your father promised you his classic automobile, and his surviving spouse’s desire to sell the car make you feel as though she is trying to cheat you out of a family heirloom of intense personal significance and value.
4Attempt joint discussion. Typically, the mediator will work with the parties to identify specific details on which you both agree to find the common ground from which a productive discussion to resolve the dispute can spring.XXAs much as you may want to interrupt or argue with the other party, try to keep the discussion as civil and rational as possible.Instead of focusing on the points of disagreement, try to find statements on which you can agree – even if that’s only a recognition that all parties loved the deceased person and want to respect their wishes.
5Move to separate rooms. After the issues at the core of the dispute are isolated, the mediator will direct each party to caucus apart from each other. The mediator moves back and forth between you and attempts to facilitate a compromise.XXExpect the mediator to visit with you several times. He or she will move back and forth between your room and the other party’s room, attempting to find the root of the disagreement so the problem can be amicably resolved.Separating the parties makes the situation less confrontational and can allow you to look at the facts rationally rather than being distracted by anger at the other party.The mediator will outline the concerns of each party and deal with each one in turn. Once one concern is resolved, the mediator will move on to the next one.If you have any evidence relevant to the dispute, such as a letter the deceased person sent to you promising a particular piece of property, or describing their estate plans, you can bring these things with you.You also may want to bring witnesses – or statements from witnesses – regarding the issues at the heart of the dispute. Mediation doesn’t follow the same strict rules of evidence that are used in courts, so written statements from other people are perfectly acceptable.
6Engage in final negotiations. When the mediator feels you are close to finding a compromise and resolving the dispute, they will bring the entire group back together to the same table to hammer out the details.XXAssuming you’re able to resolve many of the core issues, the mediator will decide when you are in a good position to complete the agreement face to face.The mediator will be focused on facilitating a compromise that satisfies both parties as well as leaving you both feeling relatively good about each other, putting any spite or anger behind you.
7Get any agreement in writing. If you are able to resolve your probate dispute through mediation, the details of that resolution must be put into a written contract signed by all parties if you want it to be legally enforceable.XXTypically the mediator will outline the terms you’ve all discussed and go over them to make sure they’re acceptable, then write up a contract.Once the contract is signed by all parties, it becomes legally binding and enforceable in any court of law.Depending on the nature of the dispute, you may have to file the mediation settlement agreement with the probate court. This is especially true if a lawsuit already was filed that was related to the dispute.Method 2Method 2 of 3:Litigating the Dispute
1Consult a probate litigation attorney. Unfortunately, some disputes between a surviving spouse and children of another marriage cannot be resolved through mediation. If you’re considering getting the probate court involved, you need the assistance of an experienced probate litigation attorney.XProbate litigation can be complex, and your judgement can be clouded by the emotional fallout from the death of a loved one and this ensuing dispute with family members.An experienced probate litigation attorney can not only provide you support but also advise you of the best options available to you to resolve the dispute.Additionally, even if you have a passing familiarity with the civil court system, there are a number of rules that apply only in probate proceedings.For this reason, you should interview several attorneys and make sure the one you choose is experienced in handling disputes similar to yours through litigation.
2Draft your complaint. Probate dispute litigation typically begins with one of the disputing parties filing a complaint or objection to challenge or contest the will that has been filed, or the person who has been appointed executor or personal representative of the estate.XXProbate disputes typically center around either a disagreement about who should be in charge of the estate, arguments about which property should go to which beneficiary, or concerns that the will is not valid or that there is another will that controls.The allegations that form the bulk of your complaint will vary based on the root of the dispute, as well as the particular probate laws of the state.Keep in mind that when a will is probated, the controlling law is the law of the state in which the deceased person was a resident – not the law of your state if you live somewhere else, even if you are one of the main beneficiaries.
3File your complaint. Once your complaint is complete, you must take it to the clerk of the probate court where the will is being probated to initiate your litigation of the dispute. The clerk will file-stamp your original complaint as well as all copies.XXIn addition to your original complaint and accompanying documents or required forms, you’ll need to bring a copy for your own records and a copy for each person you need to serve. Generally, you’ll need at least one copy for the estate and a copy for other major beneficiaries, primarily the person or people with whom you have the dispute.In other words, if you are the surviving spouse and your dispute is with your deceased husband’s three children from his previous marriage, you would need to bring, at a minimum, your originals plus five copies to be file-stamped – four if you personally are serving as executor or personal representative of the estate.You must pay a filing fee – typically around $100 – to file your complaint with the court. If you’ve hired an attorney, they may pay this fee and then add these to your bill as court costs.If you aren’t able to pay the fee, ask the clerk for a fee waiver application. If your income and assets fall below the court’s threshold, you won’t be required to pay court costs for your action.
4Have the estate and other beneficiaries served. A copy of your complaint must be delivered to the executor or personal representative of the estate, as well as the beneficiary with whom you have the dispute and any other major beneficiaries of the will.XXService traditionally is completed by hiring a sheriff’s deputy to hand-deliver the court documents to those you have to notify.A proof of service document is then filed with the court certifying that the person had adequate legal notice of the lawsuit.You also may have the option of service by mail, which means you mail the court documents to the person using certified mail with returned receipt requested.When you get the green card back that shows the person has signed for the documents, you can complete and file the proof of service document with the court.
5Evaluate any response. Anyone served with your complaint has the opportunity to file a written response, and you should expect challenges to your complaint as well as possible motions to dismiss.XXAny written responses filed in the court will be served on you using a manner similar to that which you used to serve the other parties.The response will differ depending on the role of the party served. For example, court rules may require the executor or personal representative of the estate to respond to the lawsuit.In contrast, other parties who are only tangentially involved in the dispute as other beneficiaries of the estate may not be required to respond or even take part in the lawsuit if they believe their interests would be better served by staying out of it.If a party files a motion to dismiss in response to your complaint, you typically must attend a court hearing on this matter before your case will be allowed to proceed.In a hearing on a motion to dismiss, you will have to argue that your case should be allowed to proceed. The party that filed the motion has the burden of proving that you haven’t raised any issue as to the facts and your case should be dismissed as a matter of law.
6Conduct discovery. Much like any civil lawsuit, after all pleadings have been filed the parties will engage in the discovery process and exchange information with each other that has relevance to the claims you made in your complaint.XXDiscovery typically consists of written questions, requests for production, and depositions, which are interviews with a party or witness conducted under oath.The scope of discovery will depend on the issues raised in your complaint. For example, if you are challenging the validity of the will, you may need to talk to more witnesses concerning the context within which the will was drafted and executed by the deceased person.There are some special discovery tools available to probate litigants, specifically designed to accommodate the fact that a key party in the dispute is deceased and cannot answer for themselves.For example, medical records and information regarding the deceased person generally must be made available to a probate litigation party.The court may hold a conference and set a deadline for the discovery process to be completed. This keeps the litigation moving so a trial can be scheduled as soon as possible.
7Attend the probate trial. Ultimately, the probate court will hold a hearing in which all parties present their arguments and the judge makes a decision about the claims you made in your complaint.XXA probate dispute trial proceeds similarly to any other civil trial before a judge. Each party will have the opportunity to make an opening statement, and then take turns telling their respective sides of the story.You will be allowed to introduce evidence and call witnesses in support of your claims, as well the other parties.After all evidence is presented, the judge will make his or her decision as to how the dispute should be resolved.The judge may issue an order from the bench with a written order to follow, or may take the matter under advisement and enter a written order a few days later.Method 3Method 3 of 3:Preventing Disputes
1Use a prenuptial agreement. If you anticipate a probate dispute between your second spouse and children from a previous marriage, a valid prenuptial or post-nuptial agreement can help establish the assets you’ve already accumulated to which your second spouse is entitled.XKeep in mind that second marriages often are a major source of probate disputes. Many people think of a prenuptial agreement as something made in anticipation of an eventual divorce, but when dealing with estate planning this is not the case.A prenuptial agreement allows you to clearly state the entitlements of your new spouse relative to other beneficiaries so that all is understood before the marriage is complete, thus avoiding later confusion.If you’ve already married, a post-nuptial agreement can settle issues regarding property that both spouses brought into the marriage.However, keep in mind that depending on the laws of your state regarding marital property, a post-nuptial agreement may not be valid in terms of dividing property acquired during the marriage.
2Avoid joint ownership. Real property and titled personal property owned jointly with children of a previous marriage can spawn probate disputes between those children and a surviving spouse who had full use of that property.XXJoint ownership often is considered an easy way to pass on property to someone else, but in reality it exposes the other person to your liability regarding the asset and can negate their ability to make a different decision later regarding the inheritance of that property.Joint ownership also can cause confusion if it turns out the owners of the property on the deed or title conflict with the listed beneficiary of that property in your will.For example, if you and your second spouse live in a home which you own jointly with your son from a previous marriage, your spouse may rightfully assume that she will own the home, or at least be permitted to continue to live there, after your death.However, if your son inherits the property as the sole owner listed on the deed and decides to sell the property, this could lead to significant disagreements and bitter animosity between your surviving spouse and your son.
3Update estate planning documents regularly. Wills or trusts should be reviewed and altered as necessary to account for major life changes, such as a divorce or a second marriage, and any old documents should be destroyed.XXEstate-planning experts often recommend looking over your estate planning documents at least once a year.Additionally, you should always update your estate plans after a major life event of either you or a significant beneficiary, including marriages, divorces, or the birth of a child.While you can amend a will using a codicil, typically it’s easier – and potentially less confusing for your beneficiaries – to simply create a new document and destroy the old one.Keep in mind that you must go through the same formalities to execute a new will or a codicil that you did when you created the original one, otherwise the new document will not be legally valid.
4Create a personal property memorandum. Addressing personal property separately from your will or trust instrument can prevent disputes because the separate document can be updated quickly and easily without having to go through all the formalities required for executing a will or trust.XThese documents are accepted by probate courts in most, but not all, states. If you have questions, talk to an estate-planning attorney and find out if a personal property memorandum would work for your estate.The personal property memorandum allows you to quickly and easily record any promises you made to friends or family members without having to go through the extensive process of executing a new will.For example, if you’re having a conversation with your daughter from a previous marriage and promise her your collection of antique dolls, all you have to do is add an entry to your personal property memorandum indicating that this promise was made.
5Hold a family meeting. Gather all beneficiaries together and go over your estate plans to make sure everyone understands your wishes and how you’ve planned to have your real and personal property distributed after your death.XXOne of the easiest ways to prevent disputes between a surviving spouse and your children from another marriage is to make sure everyone is on the same page regarding how you intend to distribute your assets.Even though one party or another may not be happy with your decisions, they typically will go along with it if they understand that it was what you wanted.Probate disputes often involve people who were very close to you in life, and have different understandings as to how your will or estate-planning documents should be interpreted.
