July 2012 Bar Bulletin
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July 2012 Bar Bulletin

Free to Choose: Collaborative Resolution of Probate Disputes

By Adrienne Keith Wills


You've done it. As an individual over 18 years of age and of sound mind you've exercised your freedom to create a will you're proud of.

Perhaps, in that process, you entertained visions of what that estate planning would do: Create a personal legacy, help future generations or steer the actions of your beloved beneficiaries. Motivations be what they may, you've exercised your freedom to transmit your property in light of the two great certainties in life: death and taxes.

Now the time has come to administer your estate. Under the law, the intent that you freely exercised in the creation of your will should govern. RCW 11.12.230 states, "Courts and others concerned in the execution of last wills shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters brought before them."

Of course, your wishes will be carried out by the personal representative (PR) you named. Your trusty PR values professional input and a smooth administration of the probate, and so she has hired counsel to represent her in her fiduciary capacity. It's a good thing, too, because a dispute has arisen in the probate of your estate. Whether it's a will contest or an inventory challenge, there's now a legal conflict with which your PR must deal.

Your PR now must make a choice: How will he or she deal with this conflict? In some instances, particularly where there are legitimate or novel legal questions and/or an extremely high level of conflict, the best next step may be to hire experienced probate litigation counsel. There are many such individuals in our fine state.

However, because conflicts in probate can arise from family emotional/relational dynamics that the court is not well equipped to address, alternative dispute resolution (ADR) techniques have a lot to offer. In Washington, the Trust and Estate Dispute Resolution Act (TEDRA) sets forth the statutory provisions for resolution of "disputes and other matters" involving estates.1

TEDRA's stated purpose is to "provide nonjudicial methods for the resolution of matters, such as mediation, arbitration, and agreement."2 The scope of TEDRA is broad: The court is granted the power to administer and settle "[a]ll matters concerning the estates and assets of ... deceased persons."3

Nonjudicial resolution of probate conflicts can be beneficial for many reasons:

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