After a person passes away, his or her estate goes to probate, and if that person wrote a final will and testament, the estate will be distributed in probate according to his or her wishes. There are times when a person wishes to contest a will because he or she believes that there is an issue with the estate planning documents. Some of the most common causes for contesting a will include claims of a lack of mental capacity when the will was written, undue influence, fraud, duress, or procedural issues with the way that the will was written or executed. If you wish to contest a will, who pays for the costs of the legal battle? In most cases, you will be responsible for bearing the upfront costs of litigation, but there may be a way to recover your costs. An experienced probate attorney in your area will be able to help you navigate the litigation process and explain your options for covering the costs of contesting a will.
Who Covers the Upfront Costs?
In probate litigation, the person who is contesting the validity of the final will and testament pays the upfront costs of the will contest and attorneys’ fees. In probate litigation, each side pays for their own attorneys to argue the case. Most probate attorneys work on retainer, which means paying the lawyer thousands of dollars upfront for their services. The attorney then works on your case and deducts money from the retainer for his or her work. At the end of the case, any money that was not spent is given back to the client. If the case is particularly complex or lengthy, the retainer might be completely used, and the client will be required to pay an additional retainer to continue the services of the attorney.
Few lawyers will agree to take a probate litigation case on contingency, meaning that they only get paid if they win, because will contests are incredibly difficult cases. If a lawyer does agree to take a probate case on contingency, double check this or her credentials and make sure to review how much the attorney will take in fees if you are successful in your case. A contingency agreement could take as much as one-third to 40% of your overall award at the end of the case.
Can I Recover My Costs?
In certain situations, you may be able to recover the costs of litigation for a will contest and probate case. If you win your case and the estate is opened, you can ask the court for reimbursement from the estate for your fees from the estate’s assets. The laws vary from state to state, but typically the court will award your attorneys’ fees in a probate case if the court believes that your actions benefited the estate. If you do not meet this threshold or if you lose the case, you cannot recover your costs for litigation.
Contact an Experienced Attorney
If you are struggling with the probate process or have questions about this article, don’t hesitate to contact us. We are happy to answer your questions.