Administering a decedent’s estate is not always an easy task. Where the decedent died with a will or trust in place and this document or these documents were clear and unambiguous, the probate process may be accomplished in a matter of months. However, it only takes a confusing or out-of-date will, or family strife and squabbles, to drag the probate process out for years. There are all sorts of issues that can arise during the administration of an estate, including issues over the admissibility of the will, the selection of the administrator or executor to handle the affairs of the decedent, and the manner in which the executor is administering the estate (just to name a few).
Options in Resolving Probate Disputes
Not every dispute in the probate process necessitates a trip to the courthouse. This can be good, because not only can multiple court hearings get expensive quickly, but the adversarial nature of most court hearings tends to intensify and worsen relationships between the parties. Not only this, but depending on how busy a court is, it can take weeks or longer before a dispute is before the court for a hearing.
Arbitration is an alternative to traditional courtroom litigation for resolving probate disputes. In arbitration, an arbitrator is selected in some fashion. This person acts as a decision-maker and receives evidence in a quasi-judicial hearing. Because arbitration is meant to be quicker than litigation, the traditional rules of evidence are often relaxed and the parties involved in the dispute present their arguments and evidence in support of those arguments in an expedited fashion. The arbitrator then renders a decision, which the parties are obligated to follow or appeal.
Drawbacks to Arbitration
The drawbacks to the arbitration process are obvious: whoever selects the arbitrator may have an advantage as the arbitrator may be beholden to that party. Not only this, but arbitrators may or may not have experience in hearing complicated evidence (like may be present if the decedent owned a business or some other asset that is difficult to assign a value to). This may lead to decisions that are unfair or factually or legally incorrect.
The remedy to adverse or incorrect arbitration decisions is, of course, to take the matter before a judge in a traditional courtroom hearing. This, however, essentially defeats the purpose of having an arbitrator in the first place. Therefore, deciding whether to arbitrate a dispute or take a dispute to court can depend on what type of dispute exists and the sort of evidence that will need to be presented in order for a proper decision to be made.
Mandatory Arbitration May Exist as Part of an Estate Plan
In creating a trust or estate plan, some people may require that disputes be sent to arbitration so as to keep their private affairs out of the public eye. Like other parts of a valid will or trust, such mandatory arbitration provisions will need to be adhered to. A person considering a trust or will with a mandatory arbitration provision should consider carefully how an arbitrator is selected, so as to avoid some of the problems identified above.
Your Ohio Estate Planning Lawyer is Waiting to Assist You
Speak with Dawes Legal, LLC at (614) 733-9999 and set up a consultation with us to discuss your estate planning and administration questions and concerns. We can help you decide if arbitration makes sense for your estate plan or what you can or should do if arbitration appears likely in your loved one’s probate case. Contact us today for assistance.