How Much Does It Cost to Contest a Will or Trust?
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The reality is that estates and trusts can vary considerably in size and complexity, as well as in the types of assets they contain. The facts of will and trust contests can also be drastically different from one another. As a result, it would be difficult for us to provide the average cost to contest a will or contest a trust, but we will do our best in this article to go over some of the factors that contribute to the cost of a will or trust contest.
Clients also frequently inquire about a fee structure in which they would pay only if our trust and will contest lawyers are successful in having a decedent’s will or trust invalidated. No win, no fee pricing structures are not the best option for every client, nor are they offered to every client. In this article, we will go over why this is the case.
Other questions we frequently are asked have to do with who pays to contest a will or trust. Can the cost of contesting a will or trust be paid from the estate or trust, respectively? Who pays if you contest a will or trust and lose? Who pays if you contest a will or trust and win? Just like with the question about cost, the question about who pays to contest a will or trust is complicated and can depend on the outcome and implications of the contest.
If you are thinking about bringing a will or trust contest and are concerned about cost, your best bet is to get in touch with a probate lawyer, who can provide a cost estimate based on the specifics of your trust or will dispute and work with you to find a legal strategy that fits your budget.
Does It Cost Money to Contest a Will or Trust?
If you are considering contesting a will or trust, it is important to keep in mind that filing a will or a trust contest is just like filing any other lawsuit — it will cost money, unless there is another type of fee structure you can negotiate with your attorney. Contests that settle early can be relatively inexpensive, while contests that span months or years can cost tens to hundreds of thousands of dollars or more, depending on the nature of the will or trust contest.
While there is a possibility that you could recover your legal fees from the estate or trust or from the opposing party, it is not a guarantee. That is why it is very important to 1) speak with a qualified will and trust contest attorney prior to bringing a contest and 2) ensure you have the resources to pay for the contest if you end up having to cover all the costs on your own.
Is the Cost of Contesting a Will or Trust Worth It?
Whether the cost of contesting a will or trust is worth it is something you will have to decide for yourself, because even if a contest has the potential to substantially increase the inheritance you have coming to you from a decedent’s estate or trust, it may not be worth the emotional cost. Will and trust contests not only can be draining, but they have been known to create rifts among relatives of the deceased as well.
It is also important to think about how much money is at stake in the contest. If, for example, the amount at stake is $10,000, bringing a contest will not be worth it since the legal fees on their own will be more. In our experience, there has to be at least a few hundred thousand dollars at stake. A trusts and estates attorney can help you perform a cost-benefit analysis to determine whether bringing a contest would be a financially sound decision for you based on the facts of your case.
While we will go more into the specifics of who pays to contest a will or trust in a later section, it is worth noting that in some instances attorney’s fees and costs for defending a will or trust contest can be paid directly from the estate or trust, respectively. There is a caveat, however. If the estate or trust is not sizable, a contest could potentially drain it of its resources — in which case, you could win the contest but end up losing a substantial portion of your inheritance. If this is a concern for you, you should speak with an estates and trusts attorney about your options.
How Do Attorneys Charge for Contesting a Will or Trust?
After reviewing the details of your case with you during your initial free consultation, one of our lawyers will be able to provide you with a fee structure for your proposed will or trust contest. In some instances, law firms will collect a retainer (an upfront payment) and charge at its hourly rate, asking you to pay monthly.
In rare instances, a law firm may agree to only charge what is called a contingency fee — a no-win, no-fee pricing structure that provides the law firm with a percentage of the inheritance it wins you. Most firms will not agree to contesting a trust or contesting a will no win, no fee unless they feel the case is strong and a potentially large recovery outweighs the risk of losing.
No win, no fee will disputes and trust disputes can be beneficial in that no money has to be paid upfront; however, they are generally not a good option for clients whose potential shares of a will or trust are sizable, since contingency fees can range anywhere from 30% to 50%. If a client can afford to pay hourly, it is almost always more financially advantageous to pay hourly rather than entering into an agreement for a contingency fee.
What Is the Average Cost to Contest a Will or Trust?
How expensive is it to contest a will or trust? This is an important question to ask if you are an interested party seeking to bring a contest. The cost of will and trust contests can vary based on the size of the estate or trust at issue, the nature of the contest, and on whether the disputed will or trust needs to be litigated. Consequently, it is difficult to provide a range for how much a will or trust contest will cost. On the low end, when litigating on a conservative budget, contests can cost tens of thousands of dollars. On the high end, when cases are complex and a substantial amount is at stake, they can cost hundreds of thousands of dollars.
Clients should simply keep in mind that will and trust contests do tend to come with a high price tag, especially if the matter eventually has to be litigated. The longer litigation continues, the higher the price tag — and litigation can go on for years.
If cost is a concern, it is important to speak with a will and trust contest lawyer who is willing to work with you to devise a budget-friendly solution to your trust or estate matter.
Who Pays the Cost of Contesting a Will or Trust If You Are a Beneficiary or Heir?
Going into it, interested parties should assume they will be paying for their will or trust contest out of their own pockets. If the interested party wins their contest, and the contest benefited the estate or trust, a petition could potentially be filed with the court to request an award of your attorney’s fees and costs from the estate or trust. But it is important to be aware that the vast majority of trust and will contests settle before trial so it may not be possible to recover your fees and costs from the estate or trust, that is unless the other interested parties to the action agree.
If you are a beneficiary or heir seeking to bring a contest, it is never a bad idea to speak with the other beneficiaries and heirs to see if they are on the same page as you and willing to split legal costs. Many beneficiaries have made the ill-advised decision to not participate in a contest brought by the other beneficiaries. While, in theory, beneficiaries should not have to participate in a legal battle they do not want to be part of, failing to participate can not only lose them a seat at the negotiating table but also their inheritance. (Read more about “freeloader beneficiaries.”)
Who Pays the Cost of Contesting a Will or Trust If You Are an Executor/Administrator or Trustee?
Since executors/administrators and trustees can only bring or defend contests to protect the interests of the estate or trust, respectively, they are generally entitled to use funds from the estate or trust to pay for the contest. An executor/administrator will have to seek permission from the court before using estate funds to pay for a contest, but a trustee can generally use their discretion when utilizing trust funds to pay for a contest (unless the trust explicitly forbids this or the court orders otherwise).
Suppose the trustee finds out the decedent’s new spouse had unduly influenced the decedent into amending their trust from their deathbed, resulting in the decedent’s children being disinherited and their new spouse getting everything. Would the trustee have the responsibility to try to have the trust invalidated through a trust contest, since the trust amendment was the result of misconduct? While there is no straightforward answer, the trustee could be justified in using trust funds to bring a trust contest since the trustee’s actions would be benefitting the decedent’s intended beneficiaries — although the trustee can also opt not to get involved in disputes that solely concern trust fund distributions to beneficiaries.
When the executor/administrator or trustee is bringing or defending a contest because of suspected misconduct by another party, and that misconduct is successfully proven, the court could hold the other party liable for paying the opposing side’s legal fees, although that is usually the exception rather than the rule.