The Guide to Mediation of Estate Disputes

Estate disputes that occur after a loved one passes away can be painful and exhausting, emotionally and financially.  It’s for these reasons we often recommend that our clients participate in mediation to resolve their issues. In this guide to mediation of estate disputes, we’ll cover the primary things you need to know about how mediation can help you and your family work through estate conflicts so you can all move on sooner.

What Is an Estate Dispute, Contest, or Conflict?

An estate dispute, contest, or conflict can occur either after the death of a family member or friend, often called the “decedent,” or during the estate planning process. Family members, beneficiaries, or other loved ones may disagree with the decedent’s choices or the interpretation of the decedent’s wishes. Here are some of the most common types of estate disputes we see in our legal practice.

Property Distribution

One of the most frequent causes of estate disputes is conflicts over the distribution of property. A typical situation is one where one party believes that the decedent intended for them to receive specific property, but the will or trust does not leave them the property. 

Another common situation is when family members believe that the decedent’s property has been distributed unfairly or inequitably. Suppose one sibling took a large loan from a parent that was outstanding when the parent died. In that situation, the other siblings may take issue with a property distribution that does not deduct the loan amount from the indebted sibling’s share, or, more frequently, the indebted sibling refuses to honor their obligation.

Validity of the Will

Parties may dispute whether the will is valid. For example, if the decedent did not follow certain legal formalities when executing the will, then interested parties can argue that it is not legally valid.

Lack of Capacity

Interested parties may also be concerned that the decedent did not have the necessary “testamentary capacity” when creating the will. Testamentary capacity is a very low bar when it comes to wills, and simply refers to the decedent’s ability to understand three basic concepts:

  • That they are making a will
  • The nature of the property they own.
  • The people who will inherit their property.

If the decedent did not understand these three things when the will was created, interested parties might successfully contest its validity.

Undue Influence

If the decedent changed their will because a third party compelled or forced them to do so, interested parties could dispute the estate plan’s validity on the grounds of undue influence. In many cases, the parties may disagree about whether the decedent was coerced into creating or changing estate planning documents, and obtaining the evidence needed to pursue or defend an undue influence claim demands the assistance of an estate litigation lawyer.

Estate Executor or Personal Representative

An executor or personal representative is the person the decedent appointed to manage the estate after their death. Conflicts over executors frequently arise when interested parties believe that the decedent made a poor choice in selecting an executor, did not choose the executor (or did not chose him/her freely), or when other parties think that the executor is mismanaging the estate.

What Is Estate Mediation?

Mediation is a collaborative form of alternative dispute resolution that occurs outside of court. The mediation session is conducted by a trained mediator (most often a retired probate judge) who helps the parties reach a mutually-acceptable agreement. The mediator does not have any authority to make decisions, but serves as a facilitator between the parties to help them analyze the situation, discuss relevant information, and explore possible solutions.

Mediation is a great way to resolve an estate dispute. Estate conflicts are often about more than legal issues; they usually involve family relationships or other long-term relationships and the relationship issues that have percolated for years. These sorts of disputes are highly emotional, and for this reason, a collaborative mediation process may not just offer a solution to the estate dispute; it may also allow an opportunity for parties to heal or minimally move on from their relationships.

What Does an Estate Attorney Do in a Mediation?

While the mediator is often a retired probate judge, or sometimes an attorney, they are not required to be estate planning or family law experts and will not represent any of the parties or provide them with legal advice. This means that the parties’ estate attorneys will play a significant role in the mediation process by providing independent legal advice to their clients, not to mention doing all the diligence pre-mediation to ensure the case is ready to be mediated. The mediator’s job is simply to assist estate attorneys and their clients to resolve the conflict.  The role of the estate attorney in the mediation process is to advocate for their client’s best interests to protect their client’s legal rights.

What Is the Common Outcome of Estate Mediation?

One of the most significant benefits of estate mediation is its ability to address the underlying non-legal issues fueling the fire of the dispute. This means that the solutions that the parties reach through mediation can be more comprehensive and all-encompassing than an in-court answer will be. For example, resolving emotional issues may be the most valuable outcome for the parties, but this solution would be ignored by courts or arbitrators.

It is not uncommon that estate disputes involve matters where no legal remedy that would satisfy the parties exists. Courts were not created to work out reasonable solutions to estate disputes. Instead, judges must listen to testimony and make decisions that may offer little relief to any party involved. If your goal is to find a solution to your estate dispute without assigning blame or creating a situation where one or more parties have hurt feelings, mediation may be the best option.

How Long Does It Take To Get an Estate Settlement After Mediation?

Another benefit of mediation is that it can offer quicker resolutions of estate disputes. If the parties reach an agreement, the mediator can create a written summary of the terms and ask each party to sign it on the spot. While the length of time to receive an estate settlement depends on the facts of the case, court processes are notoriously slow, and an agreement reached through mediation will almost always result in a faster settlement.

Is it Cheaper to Mediate An Estate Dispute?

In addition to providing a quicker resolution where you, rather than a judge, controls the outcome of your case, mediation also saves financial resources.  Court processes and trials are expensive, and such things as expert witness fees and trial preparation costs may be avoided entirely, saving you significant money.

Can a Case Still Go To Court After Mediation?

If you can’t reach a mutually beneficial agreement in mediation, your case can still go to court after mediation fails. You do not give up your right to litigation by trying to resolve the dispute in mediation first. Additionally, anything that was discussed or occurred during the mediation remains confidential and cannot be used in a subsequent court case. Taking the case to court means that everything will start over as if the mediation never occurred.

When Should I Contact an Estate Attorney?

If you’re dealing with an estate dispute, you should contact an estate attorney as soon as possible. Mediation can be used at any point in the estate administration, even if the conflict is already in court. However, it may be most beneficial (and economical) to participate in mediation before anything gets to court. A lawyer with experience handling will and trust disputes can review your situation and advise if mediation is the best course of action for you. 

If you have a large estate or contentious family dynamics, a mediation session may also be appropriate during the estate planning process. Participating in mediation while deciding how you want to distribute your estate can help avoid disputes after your death between your children and other beneficiaries. An added benefit of mediation during the estate planning process is that you can be involved in the solution reached. 

Have questions? The consultation is always free.

(424) 320-9444 or [email protected]

About RMO, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit

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About the Author

Scott Rahn, Founding Partner

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

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