Utah property and probate laws also protect surviving spouses with laws other than the elective share. In virtually all states the surviving spouse is the first (and as a practical matter quite often the only) beneficiary of homestead laws that permit her continued residence in the family home or that provide her a monetary homestead payment from the decedent’s estate upon his death. State probate laws also entitle her to claim certain personal property from the estate and provide her an allowance from the estate for a period of time. The testator’s disinheritance of the spouse typically has no effect on the survivor’s ability to receive these awards.
Courts in Tooele Utah refer most probate litigation to mediation. The mediator is in charge of managing the sessions in accordance with the clients’ needs and goals. Together with the clients, the mediator discusses which issues to begin with and how to proceed. The mediator often asks clients to establish some agreements about their communication in the mediation room, such as not allowing name calling, speaking one at a time without interrupting the other, keeping voices calm, and listening respectfully to each other. These informal rules are offered as they are needed during the process rather than laid out by the mediator in advance. When clients make an agreement about a rule, they will then be more likely to comply with it. In addition, the mediator models cooperative behaviors, such as speaking with a soft voice, giving each equivalent eye contact and attention, apologizing for making a mistake, not holding one’s shortcomings against them, and respectfully addressing each of them. These are all ways that the mediator keeps order and emotional safety in the mediation room. The mediator is aware that the clients may have had trouble communicating recently and is always prepared to address these problems openly, honestly, and with positive regard for each client. At the end of each session, the mediator summarizes what has been accomplished, what needs to be accomplished next, and what each needs to do to be prepared for the next session. The mediator also sends each client a memo of these items to help them prepare for the next session. This provides continuity for the mediation process. If you are fighting a probate battle in Tooele Utah, speak to an experienced Tooele Utah probate lawyer.
FINALIZING THE MEDIATION PROCESS
When all the issues have been addressed and decided by the clients, the mediator prepares a Memorandum of Agreement for the clients to review. This is a compilation of all of the session memos, flip-chart notes, and the settlement agreements organized into a memorandum which, when reviewed by their attorneys, becomes the basis of the probate decree. The attorneys then draft all the legal papers according to their mediated agreements, each person signs all the documents necessary for finalizing the probate, and they are filed with the court.
MANAGING THE MEDIATION PROCESS
A mediator operates on several levels simultaneously. The mediator needs to connect with each person, while at the same time accomplishing the practical task of identifying the issues that need to be addressed in order for the probate to occur. Once a party and the mediator have attained a comfort with each other and have a good working relationship, they begin to work together on the issues of the probate. Parties will share the goal of reaching a fair settlement, assisted by the mediator in achieving that goal.
ADDRESSING PROBATE ISSUES
The mediator next helps them explore the broad topics, breaks them down into manageable components, and then assists them in gathering the information necessary to build options. The mediator also provides order to the discussion of each issue that is referred to as the decision-making process, which we suggest is only one aspect of the role of the mediator. The order of the decision-making process of each issue is as follows:
• Identify the issue.
• Create an understanding of the issue. (This is accomplished through education and information provided by both the mediator, the clients, and sometimes by neutral experts.)
• For each property issue, place an actual value on the item, and discuss the value of each item.
• Consider options for decision making about each issue.
• Analyze the consequences of the options for each spouse and for their children.
• Discuss their standard of fairness about each issue.
• Make a decision based on their standard of fairness.
• Draft and review each agreement.
• Submit their agreements for review, drafting, and implementation by their attorneys.
One of the most frequently asked questions about mediation is, “How can it be neutral when there is a power imbalance between the parties?” This assumes three things: (1) that there is always some power imbalance when people are in conflict, (2) that a mediator would recognize this, and (3) the mediator would have to balance it. Think for a moment of the scale of justice. To balance the scale, the mediator would need to take something from one person and give it to the other. Unfortunately, mediation is not that simple.
The ability to remain neutral is a primary characteristic of the probate mediator. The mediator is sometimes referred to as a neutral third party or neutral facilitator. In the literature of mediation, neutrality is emphasized as a primary aspect of the mediator’s role.
A mediator’s neutrality is challenged not only at the beginning of mediation, but may be questioned at any time during mediation process. The mediator does not gain anything based upon how or whether the dispute is settled. For example, it is not appropriate for a mediator to offer to mediate and agree to be paid only if the case settles. Although beginning mediators may see this as an innocent method of proving themselves, that kind of contingent fee arrangement places inappropriate pressure on the mediator to compel or coerce the husband and wife into a settlement. Ethical codes for mediators forbid contingent fee arrangements. Another example of an inappropriate influence on the process can result from referral arrangements that are overtly or covertly confidential, conditional upon the mediator’s settlement rate. Even worse is a situation in which the mediator feels that he or she will be highly regarded by a referral source if the mediator influences the settlement in favor of a particular client. This does not serve anyone well, because the outcome will not be the best possible solution for the parties.
Power, like conflict, is neither good nor bad. How power is used defines whether it is constructive or destructive. Some very wealthy people may use their wealth to build hospitals, whereas others may use their wealth to buy weapons for terrorists. Each group has power through their wealth. However, one use is constructive whereas the other is destructive. It is the same between parties fighting a probate and others in a conflict.
All disputes present some level of power imbalance between the people in conflict. In mediation, that power imbalance is defined by the parties and their perceptions. The mediator’s role is to help people use their power for mutual enhancement rather than trying to balance power or determine who has more power.
Power arises out of relationship. Power may be one person acting in such a way as to gain unfair advantage over the other. Power is frequently played out verbally in discussion, psychologically in attitude, or actively in behavior. Sometimes it is very apparent. At other times, it is subtle. Sometimes it is intentional, sometimes people do not realize their own power. Silence, for example, may be experienced as a use of power that just frustrates the other, though it may not be intentional. A verbal request voiced with great emotion may be perceived as a use of power to either emphasize a point or to intimidate.
The problem with power balancing is that it assumes the mediator can accurately evaluate who has how much power when, in fact, power is often defined by perception. When one speaks with a loud voice, for example, the other may feel intimidated, but the speaker may simply be hard of hearing and speaks loudly to be sure the other person hears what is said. When one speaks intensely and with deep conviction, the other may perceive it as a powerful demand.
Dealing with power is especially difficult when parties have had a long relationship and know each other intimately. In these cases, the clients carry into mediation the power strategies that made each other feel uncomfortable in the relationship. One’s facial expression may devastate the other, and the mediator might be oblivious to what happened that made that person so upset. Each person has subtle ways of pushing the other’s buttons that are not readily apparent to the mediator.
Each person demonstrates power at different times and in different ways. The question is how each person uses that power. It is the mediator’s responsibility to learn how to recognize and deal with expressions of power. Power carries no threat, even when one has always controlled all financial resources, because in mediation there is an agreement to share the resources and provide documents to verify them. However, if one person misuses power, it may be an indication of reluctance to share information and income, thereby halting the mediation process.
Misuse of power is often based on a need or a fear. When one person misuses power and threatens the other, the mediator first needs to attend to each person’s emotional safety.
The role of the mediator is to facilitate conversation, discussion, and communication. Although the role may sound simple, it is in fact very complex. A mediator is called upon to facilitate an outcome agreeable to all involved.
Probate mediation is an alternate way for people to obtain a probate settlement. It is based upon new thinking about probate and conflict resolution. Instead of relying on the traditional adversarial court process, by first commencing a lawsuit and then settling on the courthouse steps a year or two later just before trial (and after spending thousands of dollars preparing for trial), mediation relies on the ability of parties to discuss and work out their own agreements with the help, encouragement, and guidance (but not advice) of a professional mediator. The process offers the parties new and very different choices that are better and less destructive than adversarial choices. These choices have been invented by the practicing probate mediators who have learned in the trenches what works and what does not work with high conflict parties in the midst of painful probate. Mediation offers these parties the opportunity to learn how to cooperate with each other, rather than encouraging them to compete as adversaries when negotiating and living with a probate settlement. It offers them the opportunity to use attorneys, therapists, and accountants, not as hired guns, but as experts who assist the parties to achieve fair and workable results. To the surprise of many, mediation actually becomes a vehicle to teach cooperation and to create healing.
Probate mediation is different than traditional probate procedures, even when traditional steps taken by attorneys lead to a settlement of the case without a trial. In fact, what occurs in probate mediation is 180 degrees from the adversarial process at virtually every point. The philosophy of mediation is that all sides should achieve a victorious outcome, in contrast to the adversarial probate philosophy of winner prevails due to the loser.
You Should Hire A Tooele Probate Lawyer
Utah probatelaw is complex. Your will has to be probated before the beneficiaries of your will get the share you have bequeathed them. Speak to an experienced Tooele Utah probate lawyer before you make your will. Every will has to go through probate before the beneficiaries get their share. Probate is the legal process by which a court validates the will. If your close relative has passed away living behind a will, contact an experienced Tooele Utah probate lawyer. It’s important that the will is probated. For this you must file an application in the probate court and pay the probate fee.
Tooele Utah Probate Attorney Free Consultation
When you need legal help with a probate in Utah, please call Ascent Law for your free consultation at (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506