QUESTION
Can your legal fees be recovered in a contested Will case if you win in court?
Asked on Nov 07th, 2013 on Estate Planning - California
More details to this question:
Husband's only child is contesting his will. He was given all property his Dad had before our marriage including a home, personal property and money. Our joint home was left to me in the will- we also had a joint survivor ship deed. Son is contesting will out of spite and trying to bankrupt me if he can't get it, he doesn't want me to have it. If he fails to win in court, can my legal fees be recovered, if so, what do I do now, before the suit is completed, to help make this possible?
11 ANSWERS
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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You should ask the lawyer who is representing you in the will contest, and/or in the probate. There's too much not said in your question. Are you the personal representative named in the will? Have you petitioned the court for support as the widow? Have you petitioned for an elective share, if that applies? The PR's legal fees defending a will would normally be paid by the estate.
Answered on Nov 08th, 2013 at 4:09 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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It is possible, but I cannot recall ever seeing it done. In 99% of all cases, the contest is settled out of court. In all such cases, each side pays its own legal fees.
Answered on Nov 08th, 2013 at 4:09 PM
Litigation Attorney serving St. Louis, MO
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Probate Law Center Richard J. Keyes, PC
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You do not mention what assets are passing in probate to the beneficiary(ies) in the will. If the real estate passes outside the will, then the will contest should not affect your ownership interest. You also do not say if you are the sole beneficiary of the will. If his son gets the will set aside, under the law of your state, what will be the intestacy rights of his son and you? Please discuss this with an attorney.
Answered on Nov 08th, 2013 at 4:08 PM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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Do NOT distribute the balance of the estate (including the stuff he was given) until after the will challenge. Let those assets pay the attorneys fees as a cost of administration.
Answered on Nov 08th, 2013 at 4:08 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Ask your attorney, or get one, as there are various means to increase his risks and potential liability for your fees and costs.
Answered on Nov 08th, 2013 at 4:07 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Contact your probate attorney. And if you don't have a probate/litigation attorney representing you, then obtain one; an ounce of prevention is cheaper than a pound of cure; the attorney will certainly seek legal fees for representing you. Do Not Delay.
Answered on Nov 08th, 2013 at 3:54 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Your attorney can ask the son to pay the legal fees if it is show that his claim was frivolous. And if you win, you can always use the house as security to pay your fees.
Answered on Nov 08th, 2013 at 3:53 PM
Estate Planning Attorney serving Seattle, WA
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Law Offices of Scott K. Wilson
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Yes, the "winner" of a will contest case will have a reasonable attorney fee awarded to him/her. Also sometimes a Will will have an "anti contest " provision that says basically if you contest the will you loose your inheritance provided in the will. My guess your husband's will doesn't have this - but look for it. The only thing you can do now on the fee issue to put step son on notice that prevailing party fees will be requested once his claim has been dismissed. I seem to remember that there is a short statute of limitations for a will challenge - it might be as short as 5 months after the will is admitted for probate. So if step son filed his TEDRA petition after that he may be out of luck.
Answered on Nov 08th, 2013 at 3:47 PM
3 Awards
This is something that you need to address with your attorney. The answer is maybe. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
Answered on Nov 08th, 2013 at 3:47 PM
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Attorney fees are rarely granted. This however is a question you should be discussing with your attorney. He can make efforts to get attorney fees or some other punitive damages if properly pled.
Answered on Nov 08th, 2013 at 3:46 PM
Probate Attorney serving St. Louis, MO
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Edward L. Armstrong, P.C.
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You don't really give me enough information to answer your question completely. Are you dads second spouse? The grounds for challenging a will are sometimes pretty difficult to prove. The most common ground undue influence. Visit be especially hard to prove against the spouse unless it could be proved that she convinced her husband, through her actions, to marry her with the ultimate goal being only to inherit his estate. This would be extremely difficult to prove especially if they had been married any period of time. As to whether or not you could recover your attorney fees this is something you'll have to discuss with the lawyer that represent you in the will contest lawsuit. Generally speaking, it would be up to the trial court to award attorney fees to the party that wins.
Answered on Nov 08th, 2013 at 3:46 PM