When a trust or estate dispute reaches probate court, mediation may sound like an optional attempt to make peace before trial. In California, that assumption can be dangerous.
The 2021 decision in Breslin v. Breslin gave court-ordered mediation real consequences. The Court of Appeal held that parties who received notice but failed to participate could be bound by the settlement reached without them. In that case, nonparticipating potential beneficiaries lost interests they claimed under the trust.
The practical lesson is direct: never ignore a mediation notice in a California trust or estate case. Participation does not require you to settle or accept an unfair offer. It requires you to appear, protect your position, and treat the process as a meaningful stage of the litigation.
What Happened in Breslin v. Breslin?
The dispute began after Don Kirchner died with an estate worth approximately $3 million to $4 million. His restated trust referred to an “Exhibit A” that was supposed to identify charitable beneficiaries and their percentages, but no exhibit was attached. The trustee found a separate list of charities and asked the probate court to determine who should receive the trust assets.
The court ordered the interested parties to mediation. Notices warned that anyone who failed to participate might be bound by a settlement and could lose rights as a beneficiary or prospective beneficiary. Several charities did not file responses or attend. The parties who did attend reached an agreement that distributed assets among the participants and left the absent charities with nothing. The probate court approved the agreement.
The Court of Appeal affirmed. It concluded that Probate Code section 17206 gave the probate court authority to order mediation as part of the procedure for resolving the petition. Because the absent parties had notice and chose not to participate, they could not skip the process and later challenge its result. The majority treated participation in mediation as a prerequisite to a later evidentiary hearing under the circumstances of the case.
The dissent argued that eliminating gifts based on nonattendance elevated forfeiture over the settlor’s intent and raised due process concerns. But the majority opinion is published California authority, and litigants must plan accordingly.
What Breslin Means for Beneficiaries, Heirs, and Trustees
Breslin does not mean that every person invited to every private mediation automatically forfeits an inheritance by declining to attend. The decision involved a probate court order, repeated notice, an opportunity to object, and an express warning that nonparticipants could be bound. Those facts matter.
Still, the safest response to any mediation notice is immediate attention. An interested person should not assume that silence preserves the status quo. Counsel should review the petition, court order, notice language, and deadlines. Any valid objection should be raised before the session, not after other parties negotiate an agreement.
Participation also means more than appearing on a video screen or sending a lawyer who lacks authority or information. A participant should understand the disputed documents, the value and composition of the estate, the strongest evidence on each side, and the range of acceptable outcomes. The goal is to arrive able to negotiate intelligently and to say no when the proposed resolution does not protect the client.
For trustees, the decision reinforces the importance of broad, clear notice. A trustee who knows that a settlement could affect possible beneficiaries should work with counsel to identify interested persons, provide the required notices, and create a reliable record. Mediation does not erase fiduciary duties. Trustees must still act impartially, disclose material information when required, and seek court approval when appropriate.
What to Expect Before the Mediation
Trust and estate mediation usually begins well before the scheduled session. The parties select a neutral, often a retired judge or an attorney with significant probate litigation experience. Choosing someone who understands fiduciary duties, capacity, undue influence, accountings, and probate procedure can save hours of explanation and help the parties evaluate risk realistically.
Each side commonly submits a mediation brief to the mediator, and often to the other parties as well. A strong brief does more than repeat accusations. It identifies the legal claims, organizes the important facts, addresses damages or distribution issues, and explains what evidence will matter at trial. Relevant materials may include the trust and amendments, medical records, financial statements, accountings, correspondence, deposition testimony, property valuations, and evidence concerning the settlor’s relationships and intentions.
Preparation should also include a clear settlement plan. That means identifying the client’s best realistic outcome, the minimum acceptable terms, and the cost and risk of continuing to litigate. In trust cases, value is not always limited to a dollar amount. The parties may care about removing a trustee, selling or retaining real property, protecting sentimental items, obtaining an accounting, setting a distribution schedule, allocating taxes, or ending contact among family members.
What Happens on the Day of Mediation?
Most trust and estate mediations last a full day, and complex matters may require more than one session. The mediator begins by explaining the process and confidentiality. The parties are often placed in separate rooms, physical or virtual. The mediator moves between them, testing positions, carrying offers, identifying solutions, and discussing trial risks.
The mediator is neutral. The mediator does not represent either side, issue a ruling, or force anyone to settle. A forceful mediator may challenge a party’s assumptions or deliver an unwelcome case assessment, but the final decision remains with the participants.
California mediation confidentiality is broad. Evidence Code section 1119 generally protects statements made during mediation and writings prepared for mediation from discovery or admission in later noncriminal proceedings. This protection encourages candid discussion, but it also creates a practical warning: do not assume that promises made during negotiations can later be proved in court. If a deal is reached, its material terms should be reduced to an enforceable written agreement that satisfies California law before anyone leaves.
Settlement documents in probate disputes require special care. The agreement may need to address court approval, releases, trustee resignation or appointment, payment of fees, tax reporting, asset transfers, sale procedures, confidentiality, and enforcement. If unidentified, minor, unborn, or incapacitated beneficiaries may be affected, additional representation or court procedures may be necessary.
Does Participating Mean You Must Settle?
No. This is one of the most important distinctions after Breslin. A court may require meaningful participation, but mediation remains a negotiation. Attending protects the opportunity to be heard. It does not require agreement.
Sometimes mediation should occur early, before legal fees and hostility consume the estate. In other cases, the parties need targeted discovery first. Medical records may need to be obtained, a trustee may need to account, witnesses may need to be deposed, or disputed property may need to be valued. Mediation is most productive when both sides have enough reliable information to assess exposure.
There are also disputes that may need to proceed toward trial. A trustee may be concealing assets, refusing basic disclosures, or using mediation only to delay. Evidence of incapacity, undue influence, financial elder abuse, or fiduciary misconduct may be strong, while the opposing party refuses to negotiate realistically. In those cases, court orders and a developed trial record may create the leverage that a premature mediation lacks.
How to Protect Your Rights After Breslin
If you receive a petition, hearing notice, mediation order, or notice of mediation connected to a California trust or estate, take these steps promptly:
- Calendar every response, objection, hearing, and mediation deadline.
- Determine whether the mediation is voluntary or court ordered and whether nonparticipation carries stated consequences.
- Consult experienced California trust and estate litigation counsel before deciding whether to appear, declining to appear, or signing any agreement.
- Prepare the evidence, valuation analysis, and settlement authority needed for meaningful participation.
- Put any final settlement into a carefully drafted, enforceable writing that addresses probate court approval when required.
The central lesson of Breslin is not that settlement should be accepted at any price. It is that absence can surrender leverage and, in the wrong circumstances, substantive rights. The strongest approach is to engage early, prepare as if the case may be tried, and mediate from a position grounded in the documents, the evidence, and California probate law.
Trust Law Partners represents trustees, beneficiaries, heirs, and families in significant trust and estate disputes throughout California. We use mediation as part of a broader litigation strategy, pursuing a practical resolution when it best protects and serves the client’s interests, and preparing for trial when it does not.
If a court has ordered mediation in your trust or estate dispute, or if you received notice that a settlement may affect your inheritance, call Trust Law Partners at 833-982-2079 to schedule a free consultation.