Expert: Timmy Chou - 12/14/2003

Question
I am one of five people listed on my deceased brother's will; the other three are siblings, and one is my brother's deceased wife's daughter. The daughter was never adopted by my brother.

The daughter is upset she is not the sole heir, although she is the executrix. My brother had a house. The daughter feels her son should receive it, and thus; supposedly sold the home to him for $100, 000.00. The daughter feels we have no claim to any other possessions of my brother. After our questioning, she did seem to accept are claim to the home. The daughter is selling the home without a realtor or lawyer. My brother died in August. The will was probated the day after he died. However, the daughter is going out of state until March and will not finalize anything until then.

My brother's siblings feel taken advantaged of by the daughter and do not wish to wait until March. What should we do? What are our rights since we to are listed on the will as benefactors?

Thank you!  

Answer
Thank you for your question!

Mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to assist the parties in solving dilemmas.

Therefore, I can only respond to your question from my business consulting experience.  Note that this may ultimatly be a legal question and you may wish to consult a labor attorney.

If this estate settlement is being administrated through a probate court then there will be very clear rules with respect to the settlement.  The court will sort out the claims and address every claimant.  I presume that no one has disputed the validity of the will and that the court has accepted the will as a valid statement of intent.  If this is true then the daughter's "wishes" are irrelevant and any attempt by her to circumvent the probate process will get her into trouble.  The Trustee (normally an appointed attorney) has the job to oversee her execution of the estate.  This is where complaints should be directed.  If she fails to proceed with her duties in an accurate and timely fashion, she can be replaced by someone else by the court.

She needs to be told that if she does not follow the terms of the will she can be sued and she will lose.  It sounds like she has already violated the terms of the deal, and if she sold the house, the deal can be unwound and the son will lose as well.  By far the best course for her is to do the right thing and soon.  If you'all go to trial the only winners will be the lawyers.  

These are some ideas.  Feel free to follow up with additional questions.

The pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!

Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons
for final and binding determination outside of the judicial system

Benefits of Arbitration:

    Confidential, no public record
    Limited exchange of documentation, information
    Quick, don't have to wait for a court date
    Arbitrators have expertise in the subject matter and are trained in
conflict resolution
    Cheaper than litigation
    Preserves business relationships

Negatives of Arbitration

    It's a compromise, no %100 winner
    Complex arbitration can be costly
    If not satisfied, may litigate the arbitration procedure
    Poor results with an unskilled arbitrator
    Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral
third party (the mediator) who works with the parties to reach a
settlement of their dispute.

Benefits of Mediation:

    Neutral mediator can objectively suggest alternatives not considered
before
    Parties are directly engaged in negotiating the settlement
    Can be quicker than litigation
    Less costly than litigation
    Preserves business relationships
    85% of American Arbitration Association cases mediated find
successful solutions

Negatives of Mediation

    may not reach a binding decision
    unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

    a clear winner and loser
    uses a prescribed set of procedures
    more predictable outcomes
    is final

Negatives of Litigation:

    waiting for court dates can do more harm
    usually more expensive than mediation and arbitration
    part of the public record