You Settled it, Right? Family Settlement Agreements in Probate, Trust, and Guardianship Disputes

In practice, very few cases proceed to trial. Statistically, most disputes are settled (usually through mediation). Probate, trust, and guardianship disputes are no exception. These cases are frequently resolved by utilizing what is known as the family settlement doctrine and entering a family settlement agreement (FSA). Despite the frequency with which these cases settle, drafting effective probate, trust, or guardianship FSAs can be more complicated than anticipated. For a variety of reasons, these FSAs can be both substantively and procedurally tricky. This article highlights some of the common procedural issues the practitioner may frequently encounter in the three key phases of entering a probate, trust, or guardianship FSA: (1) formation; (2) exchanging consideration; and (3) enforcement.