ProbateMediation.org

Trustee and beneficiary dispute resolution

2009-10-03T20:59:14-07:00

Resolving trustee and beneficiary disputes.

By: Mina N. Sirkin

What happens if an IRA account ends up in a estate

2008-11-21T23:29:39-08:00

See what attorney Brad Wiewel says about this topic. http://www.youtube.com/watch?v=j7FDt2ML4Zs

Eldercare Mediation: A New Way to Make Decisions Regarding Aging Parents

2008-11-15T18:54:56-08:00

"Mother should live in a retirement home where she can get help if she needs it."

"No way! Mother wants to stay in her house, and if you'd just help her more, she could."

"Why can't you kids get along? I didn't raise you to argue with family like that."

Being estranged from your family can affect all aspects of your life. Adult brothers and sisters often disagree on the provision of care for their parents. Unfortunately, few families even consider advanced planning with regard to eldercare. When hasty decisions are made at the time of an emergency, lifelong sibling animosity may result due to deeply hurt feelings. Since children value personal affection from their parents and detest favoritism, the perception of favoritism to the caregiver can lead to hostility among siblings. That can adversely affect the caregiver's health and sense of well-being, resulting in suffering by the parent. If the parent deeds the family home or changes his or her Will in gratitude to the caretaker, additional animosity arises.

A study found that "nearly 40 percent of adult children providing parent care reported serious conflict with a sibling, usually related to lack of sufficient help from that sibling." The study is cited by Deborah B. Gentry in her article "Resolving Middle-Age Sibling Conflict Regarding Parent Care", Conflict Resolution Quarterly, Vol. 19:1, Fall 2001, p. 35. And families are changing more and more--they are smaller, more urban, and are more widespread geographically. In addition, gender roles have changed and there have been numerous technological improvements, with better health care resulting in longer lives. Gentry, p. 31.

What Can We Do to Preserve Our Family Relationships?

Treat your parents as you want to be treated, return their caring love, and find a strategy that works for all of your family members. Good solutions begin with healthy conversations, not with arguing. Family members need to reach a fair agreement sharing responsibility. Family mediation is a new, more effective way to make decisions as a family. Middle-aged brothers and sisters can work with their parents to come up with the best solutions while preserving their dignity and their relationships. With aging, there will still be difficult changes in family relationships. An adult child may view a parent as a wise protector--someone to turn to in times of great strife. But when the same child becomes the caretaker for the parent, family dynamics will change.

What Is Family Mediation?

Mediation is a new way to find the best possible answers to these important quality-of-life questions. In mediation, all family members including the parents agree to the process, and agree to the inclusion of any other participants. They might choose to include the children's spouses, grandchildren, other relatives, parents' friends, caregivers, medical providers, pastors and lawyers. Mediation is time-limited and goal-focused. The mediation process itself tends to provide a safe place for respectful, civilized conversation. In this atmosphere, differences can be discussed, information can be gathered, and agreements can be reached.

What Kinds of Decisions Can Be Discussed?

Topics are chosen by the family and may include parental living arrangements, health and personal care (such as driving ability), provisions in the case of terminal illness, home upkeep and repair, financial concerns, nursing home care, trust and estate issues, guardianship, power of attorney, as well as relationships between parents, grandparents and grandchildren. Families can use mediation to avoid guardianship proceedings at which a parent's incompetency must be proven in court. Children and parents may work to develop agreement as to which child should hold the parent's power of attorney and which should serve as the parent's health care representative.

What Does A Family Mediator Do?

A family mediator:

is a neutral third party who helps the family with appropriate processes in order to help them reach true consensus on decisions regarding eldercare.
helps clear up misunderstandings, provides for the expression of true feelings, and keeps the family on track.
helps family members heal hurt feelings, as well as working to avoid blame and self-pity.
provides for future modifications of their written agreement as the need arises.
involves the parents in the process focusing on their capabilities rather than their perceived incapacities. Attorneys often deal exclusively with a guardian or attorney-in-fact, but in mediation, parents can be included fully or to the extent possible.
encourages family members to focus on what is in the best interest of their parent.
helps the family members consider as many options as possible, and
helps them evaluate options while leaving the decision making to the family.

What Does A Family Mediator Not Do?

The family mediator does not:

make any of the decisions for the family. Rather, the mediator keeps the family focused on priorities and opportunities for clarification.
provide family therapy, although mediation may prove to be therapeutic.
practice law while serving as a mediator, although many mediators are also attorneys. However, family members are entitled to legal advice from their attorneys at every step of the process before signing any agreements.

What Role Do Family Members Play in Mediation?

The family members make decisions with and for their relatives even though they may have differences in philosophy, as well as in their time, space and financial resources.
Their parents maintain their dignity and autonomy by being involved as much as possible.
Mediation brings family members closer together to improve their communication skills and work collaboratively.
Finances and tasks can be divided up rather than falling on one child's shoulders, and
Children unable to attend due to distance can still take part by telephone or other electronic means.

What are the Advantages of Family Mediation?

Parents can maintain their dignity and autonomy by being involved as much as possible in decision making.
Finances and tasks can be divided up, rather than falling on one child's shoulders.
Participants can build a "custom-made" plan that works well for them.
In a private, informal setting, the mediator will help them overcome obstacles that block problem-solving.
Families that turn to family mediation can improve their relationships and show loving care for their parents.

"I am so pleased that you agreed to take care of Mom three weeks a year so I can go on vacation. It helps me just to know you'll be there for me, and I appreciate your financial contributions as well."

"Well, it only seems fair to share the responsibility. Just because you live near Mom doesn't mean you should be the only child caring for her."

"I'm so glad you kids worked this out with me. Now I know you can still count on each other after I'm gone."

Janet Mitchell, J.D.
7503 Hosler Rd.
Leo, IN 46765

260-483-7660
FAX: 260-483-7660
Janet@AskTheMediators.com

Legal Summaries

2008-10-25T19:18:47-07:00

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Sibling rivalry during inheritance disputes

2008-04-06T10:29:30-07:00

Inheritance can strain family ties

Like in a divorce, siblings' emotions often prevail over their intelligence

"By Teri Karush Rogers | New York Times News Service

April 6, 2008

NEW YORK—In New York City real estate, death is the ultimate leveler, evicting the residents of 16-room duplexes as well as those in fifth-floor walk-ups. It doesn't matter who you know.

But even as homeowners ascend to that great co-op in the sky (where the plumbing is excellent and every line commands sweeping views), all hell can break loose among those granted a share of the earthly dwelling left behind.

"You would think it would be easy because there's money at the end of the rainbow, but there are more problems than you would think," said Adam Leitman Bailey, a Manhattan real estate lawyer.

"This is one of those cataclysmic events that really shake everybody up. It's just like in a divorce, where you don't use your brain—you use your emotions. So you're hurt, you're not thinking clearly, and a lot of the time the person that dies is the one who used to give you advice."

For a buyer, conflict among heirs, or just conflicted feelings brought on by the death, can translate into lengthy delays at the negotiating table over what a parent, aunt or uncle's home is worth.

On the other hand, for patient buyers, such delays can spell opportunity.

"Estate taxes have to be paid within a year, and so if an apartment is still on the market after six months, you have to borrow money or make a deal with the government," said A. Laurance Kaiser IV, the president of Key-Ventures Inc., a Manhattan real estate brokerage. "Things become more negotiable."

Nevertheless, lawyers and brokers who have seen the drama play out describe qualified buyers who walk away frustrated, families who become permanently estranged over asking prices, and delays that siphon money in the form of carrying costs, legal fees and slashed sales prices.

The recent upsurge in prices has only created more motivation and opportunity for conflict as soaring property values have turned homes into the crown jewels of many an inheritance.

"Tragically, money is a god," said Kaiser, who has watched heirs become "piranhas" around their parents' pricey domiciles, sometimes securing appraisals well before a parent's last breath.

The messiest and most common estate-sale skirmishes typically involve sibling rivalry. Ancient tensions can reignite when brothers and sisters are forced to work together in an emotionally charged situation.

"This is their chance to get the attention they always wanted, to get the revenge they always wanted, and for the youngest child to finally show that they matter," Bailey said.

Brokers and lawyers overflow with stories of henpecked siblings pecking back with their newfound power, gained because their cooperation is necessary to sell a property. (Heirs were less eager to speak on the record for fear of further straining family ties.)

Charles D. Urstadt, an executive director of sales at Halstead Property, recently helped another Halstead agent mediate between two well-off sisters selling the Fifth Avenue apartment that had belonged to their elderly mother.

"One was a very strong, dominant woman who had had a great career," he said. "The other was sort of a meek person who had been concentrating more on her family. They were both very intelligent, cultured women but there was a clear difference in their personalities."

After choosing a broker, the sisters could not agree on price. Although the agent recommended $7 million, the formerly meek younger sister "said she was thinking it was more like $10 million, and there was no way you could justify that," Urstadt said. "It was clear she was trying to get to her sister. Suddenly, the younger sister was not responding to phone calls, and the whole thing kind of ground to a halt. It was not about the money. It was all about the power. It reminded me of a divorce situation where one side had a grudge and threw their weight around when they finally had the chance."

It took a month of intensive shuttle diplomacy to get the sisters to agree on the price. "Normally, it takes two days," he said.

While pricing is a common battlefield for heirs, other flash points include which agent to hire, what will be included in the sale, who is responsible for cleanup and maintenance, how much staging will be required to put an aging property in the best light and who to select as the real estate lawyer.

Some of the more bitter fights, and occasionally darkly comic ones, occur when one heir wants to live in the family home but can't afford to buy out the others.

Michele Kleier, president of Gumley Haft Kleier, a real estate brokerage in Manhattan, recalled the twins who hired her to sell their deceased mother's postwar three-bedroom apartment on the Upper East Side in 2005. "The female twin had married well and had it together, while the male twin was very dependent on mommy and daddy and was not successful in life," Kleier said. "He really did not want this apartment sold."

The twins argued bitterly over which possessions to remove from the home. Then, the son moved in, ostensibly to sort through paperwork.

Kleier showed the apartment approximately 50 times over the next six months; each visit was like another scene in a black comedy.

"He would always be home. He would follow us around and say things like, 'I can picture Mom in bed, dying,' or 'I remember when she had the IV dripping into her arm—it was such a torturous few years,' or 'Make sure you don't leave your key with the doorman because my mother had a lot of things disappear.' He would have his computer tuned to a porn site, so you would walk by and see the most vile photos. He made the apartment as messy as he could. He smoked cigars. He wouldn't open the blinds or flush the toilets."

Eventually, the executor had the brother legally removed, and Kleier found a buyer for $2.6 million. "He basically cost himself and his sister $300,000 because after the apartment sat on the market for six months, everybody in town thought it was very negotiable," she said.

Brokers say that "anxious" heirs—the graying children whose parents' long lives reduced the amount of money they expected to inherit, and also delayed its arrival—are especially prone to believe they are being cheated.

"In many cases, it's like the last money they're going to inherit, so they become very firm on the price," said Daniela Kunen, a managing director at Prudential Douglas Elliman."

As the real estate market prices drop, it is even more important to obtain an early agreement of beneficiaries and heirs regarding the expected listing price of estate and trust real estate to prevent undue delays in sales which further decrease prices obtained by trusts and estates.

Mina N. Sirkin is a Board Certified Specialist attorney in Estate Planning, Probate and Trust Law by the Board of Legal Specialization of the State Bar of California. Ms. Sirkin practices in Los Angeles County, California. MSirkin@SirkinLaw.com. http://www.SirkinLaw.com.

Dispute Resolution

2008-04-04T13:34:25-07:00

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Retirement Planning

2008-04-04T13:22:00-07:00

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Legal News

2008-04-04T13:10:45-07:00

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