Knowledge Base

The Inheritance Wars -
         Post Mortem Estate Mediation


July 1, 2006
Written by Staff at The Centre for Mediation & Dispute Resolution

The Inheritance Wars - Post Mortem Estate Mediation

One parent dies and the adult children step in to help the surviving parent manage a whole new life without their partner. Each of the children has different coping mechanisms to manage their own grief, as well as helping to manage the new needs of their grieving parent. Or perhaps, the second parent has died; no matter what your age, you are now an orphan. Whether you are twenty or fifty, you and your siblings now face a whole new family dynamic. Perhaps your parents did not have a will. (Over half of Americans don’t.) Perhaps there was a substantial estate plan. In either event the time of transition is fraught with new feelings; and, even more importantly, the family dynamics will change.
Sometimes, despite estate planning, problems arise after the estate is collected. Sometimes there was effective tax planning for an estate, but not effective people planning. Sometime issues arise from inadequate or incomplete estate planning: “I leave all of my personal effects to be divided among my five children.” How are these effects to be divided? What happens when everyone wants Dad’s desk? Who gets grandma’s good china? How are the pieces of jewelry divided? When families are grieving, often leftover emotional stresses rise to the surface, making these kinds of decisions more difficult and the emotional impact more lasting. This isn’t the way families want things to work. This isn’t the time to tear families apart.

Case Study #1 – Grandma left $25,000 to each of her six grandchildren, but also left the remainder of her estate – which included a small home in a retirement community - to the oldest of her grandchildren. Two of the grandchildren were successful in their own right and were not particularly upset about this unequal division of Grandma’s estate. One of the grandchildren is severely impaired and did not understand the situation. The remaining three grandchildren, all siblings, found themselves in a very uncomfortable situation. The younger two siblings were angry, not only at Grandma, but at their oldest sibling who, in their view, unfairly ended up with a substantial windfall, merely on the basis of birth order.

Case Study #2 – Dad had died several years ago, and Mom was heart-broken. She would not allow anything to be moved from the home she had shared with her husband for fifty years. Mom suffered a broken hip and moved to an assisted living facility, but she died six months later. While Mom was out of the house, one of the children removed various items from the house, including china, jewelry and artwork. Mom’s will provided that “the contents of the house shall be divided among my three children.” The children fought about which ‘removed items’ should be included in the contents of the house and also about how to divide the contents. After months of fighting, the siblings were no longer speaking to each other.

Case Study #3 – Henry made substantial loans to his middle son, John, to help John start his own business. While these loans were not documented, Henry referred to these payments as loans, and John did make some interest payments to Henry. Over the years, John stopped making the payments. The record keeping of these loans is spotty at best. After Henry’s death, Robert, the eldest son, is appointed executor of Henry’s will. Henry’s estate is to be divided among his three sons. Robert cannot find adequate records of the loans and the repayments, and doesn’t know how to reconcile these obligations with the estate division. Mark, the youngest son, is struggling financially and needs whatever he can get from Henry’s estate to help him pay his bills.

Mediation - Post Death

Families should not risk fighting, tension and estrangement after the death of a parent or other family member. Too often, siblings and families are torn apart bickering over estate decisions at the time that each person is grieving and in need of familial support. Perhaps there was no will, or perhaps the will is vague. Perhaps some aspects were not considered adequately. Perhaps different family members have very clear, but different, understandings about what should happen. Estate mediation provides an excellent forum to ensure that the emotional upheaval of grieving doesn’t turn destructive to the very relationships that matter most. (See last month’s article on this site for ways in which pre-planning estate mediation can be useful to avoid some of these problems.)

Estate mediation provides a neutral, professional, safe environment to resolve these issues. Trained professional mediators are able to help families work in a cooperative approach. Mediation is often more effective because mediators help guide the parties to consider their interests, rather than entrenched positions. There are often similarities of interests in estate mediation cases – ensuring that valuable or sentimentally important heirlooms stay in the family, preserving more of the estate for distribution, and most important, maintaining positive family relationships. Estate mediation is especially useful because the parties involved should have long lasting continuing relationships. Estate mediation can ensure that these relations remain – or become – relationships where there is a healthy productive framework for conflict resolution.

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