Who Pays Attorney Fees in Will Contest Cases? A Complete Guide to Legal Costs and Responsibilities
When a loved one passes away, families expect the estate to be handled smoothly and according to the deceased’s wishes. However, disputes sometimes arise over the validity or fairness of a will. This legal dispute is known as a will contest. One of the most common and pressing concerns during such disputes is who pays attorney fees in will contest cases. The answer depends on several factors, including state laws, the nature of the dispute, and the outcome of the case.
Understanding a Will Contest
A will contest occurs when an interested party—such as a beneficiary, heir, or creditor—challenges the validity of a will in probate court. Common grounds for contesting a will include:
- Lack of testamentary capacity
- Undue influence
- Fraud or forgery
- Improper execution
- Revocation of the will
These disputes can become emotionally charged and financially burdensome. Legal representation is usually necessary, which leads many people to ask: Who bears the cost of hiring an attorney?
The General Rule: Each Party Pays Their Own Fees
In many states, the default rule is that each party involved in the will contest pays their own attorney fees. This is commonly referred to as the “American Rule,” meaning that unless a statute or court order says otherwise, litigants are responsible for their own legal expenses.
If you challenge a will and lose, you typically must pay your own lawyer. Similarly, if you defend a will as an executor or beneficiary, you may also be responsible for your own legal costs—unless certain exceptions apply.
Because legal fees can quickly accumulate, understanding who pays attorney fees in will contest proceedings is critical before filing a challenge.
When the Estate Pays Attorney Fees
In some situations, the estate itself may cover attorney fees. This often happens when the executor or personal representative hires an attorney to defend the will in good faith. Since the executor has a legal duty to uphold the will’s validity, courts frequently allow reasonable attorney fees for the defense to be paid from estate assets.
However, this generally applies only when the executor is acting responsibly and in the best interest of the estate. If the executor engages in misconduct or defends a clearly invalid will, the court may refuse to allow the estate to cover those legal costs.
Additionally, some states permit the estate to pay attorney fees for both sides if the contest was brought in good faith and raised legitimate concerns. In these cases, the court may determine that the legal dispute benefited the estate by clarifying the decedent’s true intentions.
When the Losing Party Pays
Certain states have laws that allow a court to order the losing party to pay the winning party’s attorney fees. This is more likely when the court determines that the will contest was frivolous, malicious, or brought in bad faith.
For example, if a disgruntled relative challenges a valid will with no credible evidence, the judge may require that person to reimburse the estate or the other party for their legal expenses. This rule discourages baseless lawsuits and protects estate assets from unnecessary depletion.
Still, such awards are not automatic. Courts typically evaluate the circumstances carefully before shifting fees from one party to another.
Contingency Fee Arrangements
Another important factor in determining who pays attorney fees in will contest matters is the type of fee arrangement. Some attorneys handle will contests on a contingency basis, meaning they only get paid if they win or secure a favorable settlement.
In these cases, the attorney receives a percentage of the amount recovered. If the client loses, they may owe little or no attorney fees, although they might still be responsible for court costs and other expenses.
Contingency arrangements can make it easier for individuals to pursue legitimate claims without paying large upfront legal fees. However, these agreements vary by state and law firm, so it is important to review the terms carefully.
Court Discretion and Good Faith
Judges often have significant discretion in deciding fee issues. Courts consider whether the contest was filed in good faith and whether it raised substantial questions about the will’s validity.
If the court finds that the contest served a legitimate purpose—such as uncovering undue influence or fraud—it may order that fees be paid from the estate. On the other hand, if the contest appears to be motivated by greed or personal vendettas, the challenger may be required to bear their own costs or even pay the opposing party’s fees.
This discretionary power makes it essential for potential challengers to seek experienced legal advice before proceeding.
Impact on the Estate and Beneficiaries
Legal fees in a will contest can significantly reduce the value of the estate. When attorney fees are paid from estate assets, the total amount available for distribution to beneficiaries decreases.
For example, if an estate is worth $500,000 and $100,000 is spent on legal fees during a prolonged dispute, beneficiaries collectively receive less than originally anticipated. Even if the will is upheld, the cost of defending it can still diminish inheritances.
That is why disputes over who pays attorney fees in will contest cases are not just procedural questions—they have real financial consequences for everyone involved.
State Laws Matter
Probate laws vary widely from state to state. Some states have specific statutes addressing fee-shifting in will contests, while others rely primarily on judicial discretion. Certain jurisdictions are more inclined to award attorney fees from the estate if the challenge was reasonable and made in good faith.
Because of these variations, it is crucial to consult a local probate attorney who understands the rules in your jurisdiction. A lawyer can assess the strength of your case, explain potential financial risks, and help you make an informed decision.
Practical Considerations Before Filing
Before contesting a will, consider the following:
- The strength of your legal claim
- The potential cost of litigation
- The possibility of mediation or settlement
- The impact on family relationships
- The risk of paying your own and possibly the other side’s fees
Will contests can be lengthy and emotionally draining. Even if you have valid concerns, the financial implications should not be overlooked.
Conclusion
Determining who pays attorney fees in will contest disputes is not always straightforward. In many cases, each party pays its own legal costs. However, courts may order the estate to cover fees when the executor acts in good faith or when the contest raises legitimate issues. Conversely, a losing party that acted in bad faith may be required to pay the opposing side’s fees.
Because the answer to who pays attorney fees in will contest cases depends heavily on state law, court discretion, and the specific facts involved, seeking professional legal guidance is essential. Understanding the potential financial risks before initiating or defending a will contest can help protect both your rights and your inheritance.