What Are The Alternatives To Estate Or Probate Litigation?
The short answer to the question is, the alternative to estate or probate litigation is settlement or preventative maintenance.
Settlement:
Most probate and estate matters are litigated by attorneys because the litigants themselves are usually very emotionally charged and they have difficulty seeing eye-to-eye on matters. The attorneys will look at the client’s case objectively and give them an assessment as to the strengths and merits of the case. Good attorneys will to be able to assess what will make the client happy. Is the client very nervous and would they prefer to avoid the stress of litigation, or are they contentious and would love the litigation process? The attorney is going to be able to assess that.
The attorney can discuss the matter objectively and evenhandedly with the attorney on the other side. By determining whether or not their client has an interest in settling, they can then begin the negotiation process with the other attorney. It is important to approach negotiation from a position of strength, meaning that some litigation may be needed in order to set up a strong position. By setting up a strong position, there will be a stronger negotiating posture. If it can be expressed in solid terms to the other attorney what’s going to happen if no settlement is reached, then the other attorney can communicate that to their client and hopefully convince them to come to the bargaining table.
If a client has an interest in settling, then there’s value in ending the litigation early. Even if the client feels confident that they’re going to win because they’re in a position of strength, they may be willing to settle if the terms of settlement are fair under the circumstances. That would be the start of the negotiation. The other attorney can then look at that objectively instead of just being a litigant who is caught up emotionally and says, “Sue me until the end of time, it doesn’t matter. I am never going to give up on this until the judge tells me I have to give up.” That’s not a productive position to take. On the other hand, if the costs of litigation and the risk of losing in litigation are high, then a client may be willing to take the offer.
If the client is not willing to take the offer, then they can make a counter-offer and see if the other side is willing to give a little bit more in order to come to a settlement. Settlement is generally a good alternative to litigation, but my particular feeling is that in order to go into that settlement most effectively for the client, negotiating from a position of strength is necessary.
Preventative Maintenance:
Another alternative to litigation is preventative maintenance, which is just like checking the oil in a car to ensure that it is safe to drive. Preventive maintenance in the estate and litigation world is essentially setting up proper estate documents and contracts such as prenuptial and postnuptial agreements early on. It’s important that they are strong documents that are enforceable and difficult to litigate against.
Fortunately, many of my clients come to me for planning and advice well in advance of someone passing away and getting into the position of potentially leaving a family mess behind. Clients should carefully determine what it is that they would like to happen after they pass away with their assets. We then structure the documents that lay out their wishes clearly and concisely. For instance, a wealthy couple may want to give money to their child, but they may be concerned that the child will get divorced and that half of the money will end up going to the divorced spouse.
We can set up documents in such a way that the money can only be directed towards the child. We protect that further with a requirement in the trust document for a postnuptial or prenuptial agreement. Through a postnuptial or prenuptial agreement, the spouse or prospective spouse disavows any interest in the money that the parents leave behind. Through a proper estate plan, which takes into account all of the desires and wishes that the individuals who have the assets want to accomplish, we can generally avoid a lot of litigation.
Akiva Shapiro, A Personal Attorney for Your Life, Business & Legacy
I call myself a personal attorney for your life, business and legacy. This is because I look to get a clear understanding of the client’s entire life from a holistic legal perspective. It’s important to understand where the client is coming from, where they’re headed, where they want to go, what they have and what they want to protect.
It’s about protecting your rights, assets, what you own and what you are entitled to. If an attorney doesn’t understand a client’s overall situation, then they won’t be able to protect their assets or properly represent them. It’s very important to look for an attorney who the client can relate to and feel comfortable with. If a person can find the type of attorney who has the skills to do the job, as well as the individual personal skills, then they are going to be happy with that attorney.
For more information on Alternatives to Estate Or Probate Litigation in New York, Long Island, Nassau or Suffolk County, a free phone consultation is your next best step. Get the information and legal answers you are seeking by calling (516) 806-0762 today.
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