Estate Planning

Estate planning sounds like it belongs in the hands of the wealthy, that you have to have an estate in order to do planning. The term is misleading. It actually applies to a number of agreements that people in family relationships can make to protect themselves and their property interests. In the absence of specific agreements, there are defaults in the law and when specific planning is not done, these defaults will apply. The defaults are not necessarily bad, they attempt to create an equitable solution. But sometimes this is not what a family would have planned. Sometimes families are so different from what the law envisioned this is not a desired outcome.

Justice and Equality Legal Services (JELS) focuses on creating mediated property agreements for families, however they are defined. These mediated agreements include prenuptial, postnuptial agreements, or property agreements. The law around these agreements requires that parties have separate counsel (attorneys) because of there are conflicting interests. The law provides for something and couples are typically agreeing to something that the law would not provide. The agreements outside what the law provides typically advantage one person over the other and so their interests are conflicting.

A common way agreements are made is for clients to start with two separate attorneys. Even if they are attempting to do it amicably, this situation sets up for advocating for individuals and not the couple.

The alternative approach of mediated agreements is that the parties first come to an attorney acting as a mediator. The mediator seeks to understand the concerns of the couple. To make sure the couple understands what the defaults in the law would provide and then help them contract to achieve their goals. The mediator will then draft and agreement and the parties will take the agreement to separate attorneys to review and provide individualized advice that will meet the requirement of independent counsel review required by the statute.

The mediator model also works for alternative families. For nontraditional families, i.e., families where there are more than two adults consenting to the relationship, this model provides a flexibility to address concerns of protecting property so that all members are protected as intended.