The Cost of Contesting a Will in Probate

By Teo Spengler
contests, civil trials, the probate judge

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Contesting a will -- asking a judge to declare that a will is invalid -- involves much more than filling out a form. The cost of the proceeding depends on exactly how much more it involves, and is determined by the sum of attorney fees, expert witness fees and all other costs for gathering and presenting your evidence in a probate court. Thus, costs vary widely from one case to another.

Probate Procedure

A will goes to probate upon the death of the person who made the will, called the testator. Probate is a court-supervised process in which the estate executor, who is often named in the will, gathers estate assets, pays estate debts and distributes the remaining property to named beneficiaries. Challenges to the validity of the will are made during the probate proceeding. The only people entitled to present a challenge are those who have a monetary interest in the matter; that is, people who would stand to inherit if the will in probate is found invalid or who would be beneficiaries under a different will.

Grounds for Will Challenge

Most states restrict the grounds on which a will can be contested. The lack of capacity to make a will or proper execution is grounds in most states; you can contest a will if the testator was not of age, lacked mental capacity or failed to sign the will or have the correct number of will witnesses. However, more common grounds for contesting are fraud, forgery or undue influence. Undue influence usually involves a caretaker who manipulates an ill, old or emotionally vulnerable testator.

Attorneys Equal Attorney Fees

Attempting to handle a will contest on your own is not recommended. Successful will contests are rare, and almost always involve experienced litigation attorneys on both sides. The validity of the contested will must be defended by the executor on behalf of the estate and those named as beneficiaries in that will. Once the executor hires an attorney, the will contest becomes the equivalent of civil litigation. Attorneys often charge by the hour in such matters, so the attorney fee component of the cost of the contest is equal to the hourly fee times the number of attorney hours involved.

Expert and Other Costs

A will contest involves myriad expenses in addition to attorney fees. If you are claiming that the testator was incapacitated at the time she made the will, you may need to bring in medical doctors and psychological experts; expert witnesses often charge high hourly fees for trial preparation and litigation and you often have to pay for their travel and wait time. You will also have to pay the costs of obtaining evidence, taking depositions of relevant people, and similar court costs.

About the Author

Living in France and Northern California, Teo Spengler is an attorney, novelist and writer and has published thousands of articles about travel, gardening, business and law. Spengler holds a Master of Arts in creative writing from San Francisco State University and a Juris Doctor from UC Berkeley. She is currently a candidate for a Master of Fine Arts in fiction.