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Who pays attorney fees in probate litigation?

The general rule is that each party pays their own attorney fees. There are, however, exceptions.

Most notably, if the judge rules in your favor you might be able to ask that the other person pay your legal fees and other litigation costs. There is a caveat; you need to prove that the probate claims of the other party were groundless or frivolous.

Why it is tough to get an award of attorney fees?

This standard is tough to meet. In one Colorado case, one brother argued another sibling had unduly influenced their father to decrease his inheritance.

Declining mental and physical health of the father at the time he made the last revision to a will was cited as evidence by the brother. The personal representative for the estate argued that a number of factors supported the validity of the will, including:

  • The several week time frame that it took to complete the updated will and consultations with an attorney and various family members
  • Despite failing health, the father understood how the will would affect each child’s inheritance
  • The will supported the goal of ensuring the farm remained in the family and continued as a working farm

A jury concluded that the will was valid after a lengthy trial. Attorney fees became a dispute.

The court denied a request for attorney fees finding that the matter was “close” and the claims did not lack justification. Under its equitable authority, the court granted and denied some of the request for litigation-related costs. The Colorado Court of Appeals upheld the decisions.

Just winning a case is not enough to have your legal fees covered. For this reason, it is important to seek out an attorney who is experienced and will provide candid and cost effective legal advice.


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