This document provides tips for resolving conflicts that arise in trusts, estates, and conservatorships. It recommends: (1) bringing in an experienced attorney early to help avoid a conflict, (2) properly documenting all conversations and actions to protect yourself, and (3) knowing when to seek court approval of actions or accountings to avoid disputes. The document also discusses how to select a mediator and carefully draft any settlement agreement reached through mediation.

1. RESOLVING CONFLICT IN TRUSTS, ESTATES
AND CONSERVATORSHIPS – PROTECTING
YOURSELF AND MAKING SURE THE
SETTLEMENT “STICKS”
PRESENTED BY BARRY L. ADAMS
Attorney at Law
Law Office of Adams & Rafferty, P.C.
1400 N. Dutton Avenue, Santa Rosa, CA 95401
(707) 542-6644
barry@adamsandrafferty.com

2. SELECTION OF COUNSEL
• Timing: Don’t wait too long to bring your counsel in. Bring
an attorney in at an earlier stage may help avoid a conflict.
• Selection: Make sure that you pick an attorney who is truly
qualified to deal with your situation
– Attributes:
• Experience in the legal area in contest
• Litigation/dispute experience
• Goal sharing with you – i.e. Legal protection of your business,
settlement of the matter and avoidance of excessive costs
• Avoidance of “stirring the pot” with beneficiaries
• Belief in mediation and other alternative dispute resolution methods

3. PROTECT YOURSELF THROUGH
PROPER DOCUMENTATION
• The Probate Code requires you to keep beneficiaries informed of
the trust and its administration (P.C. §16060). Use that
communication as an opportunity to protect yourself and avoid
disputes
• Document important conversations with correspondence and/or
email, or at the very least a memo to file
• Be careful of the informal nature of email and its general lack of
confidentiality -- think twice before hitting the send button
• Documentation to the beneficiaries lets them know that you are
taking action and lessens suspicion
• Consider use of notice of proposed action procedure in trust
matters
• Photos and/or videotapes when dealing with personal property and
safe deposit boxes

4. AVOID APPEARANCE OF IMPROPRIETY
• Be very careful of your own dealing with
family members or close friends. If necessary
disclose and be willing to recuse them or
yourself from the situation
• Avoidance of referral fees or other
remuneration from consultants or others you
work with
• Confidentiality: Avoid talking about your
clients and cases to others

5. PERSONAL PROPERTY -- HOW TO
AVOID GETTING BLAMED
• Come up with a “fair” resolution
• Make sure that the property is marshaled and
there is no claim of theft
• Appraisals by experts can be required
• Check trust to see what your powers are – if in
doubt ask for court help

6. KNOW WHEN TO SEEK COURT
APPROVAL OF ACTIONS AND
ACCOUNTINGS
• Err on the side of getting court approval
• Saving money and cutting corners is not
worth it in this area
• Waiver and/or approval of accounting by
beneficiaries
– Issues regarding competency or sophistication of
beneficiaries

7. KNOW WHEN TO RESIGN AND WHAT
AGREEMENT FROM BENEFICIARIES IS NEEDED
TO PROTECT YOURSELF
• Acknowledge when you are in a “no-win”
situation
• Determine if it is worse to continue or worse to
quit
• Make sure you have a complete release of all acts
and court approval of the settlement
• Are you just punting this to someone else?

8. SELECTION OF A MEDIATOR
• Issues and Points
– Local vs. out of the area
– Judge vs. attorney
– Some great judges and attorneys are only so-so mediators
– Experience in this area
– Approach: touchy feely vs. brass tacks
– Goal of mediation: financial issues only or some family
issues
– Cost
– Availability
– Try not to force your choice on other side. It may end up
tainting the mediator

9. THE ISSUES THAT MUST BE RESOLVED IN ANY MEDIATION
SHOULD BE DETERMINED PRIOR TO THE MEDIATION
• Sit down with your attorney well in advance of a
mediation and determine the issues:
– Be ready with all of the documents you may need prior to
the mediation
– Prepare the most recent accounting so that it can be relied
on and approved if necessary
– Make sure you have appraisals that may be needed
– Make sure you have all documents that may be needed
– Think strategically about who you will be sharing (or not
sharing) a room with at mediation
– Make sure you are aware of all issues the beneficiaries
desire to be discussed

10. CAREFUL DRAFTING OF SETTLEMENT
AGREEMENT IS CRUCIAL
• Mediation agreements can be rushed –
preparation in advance of the mediation will
avoid leaving out issues
• Make sure all upcoming responsibilities are set
forth, including who will do them and by when.
• Don’t set impossibly short deadlines
• Make sure events are not tied into some action
that the other side or its attorney can delay

11. COURT APPROVAL OF SETTLEMENT
AGREEMENT
• Recommended in almost all cases
• Can often be done ex parte with minimal extra
cost
• Think about need for notice – i.e. other heirs
or remainder beneficiaries who might be
affected
• Court order ensures easier enforcement of
settlement agreement if breached