Attorney’s Fees in Probate Litigation: Does the Loser Pay?

Judges are fond of saying that when it comes to attorney’s fees, our legal system employs what is known as the “American Rule”; that is, unless there is a specific law or contract provision that permits or requires the losing party to pay the winning party’s attorney’s fees, each party in a lawsuit has to bear its own attorney’s fees and expenses.

There is a significant exception to that rule, however, when it comes to litigation concerning wills and trusts in Massachusetts. Massachusetts law authorizes the Probate and Family Court to award attorney compensation and reimbursement for legal services upon a showing that the attorney’s services “conferred a benefit” upon the particular estate or trust.”

This does not mean that every successful challenge to a will, trust or the actions of a trustee will result in the successful party’s recovery of attorney’s fees. The award of attorney’s fees is within the court’s discretion but is never required.

There are, however, certain factors that increase the likelihood that the winning party in probate litigation will be awarded attorney’s fees. Those factors include the following:

1. The egregiousness of the losing party’s conduct. For example, a trustee who “feeds at the trough” by paying himself/herself excessive fees or using trust funds as their “personal ATM machine” can expect to be tagged with an attorney’s fees award.

2. The amount of money involved. An estate or trust worth millions of dollars that is “preserved” as a result of the winning party’s efforts is more likely to obtain a fee award than one with a much smaller amount of assets.

3. Whether there are minor children or disabled or eldery adults who benefit from the winning party’s conduct. Probate Court judges are champions of the rights of these categories of people, and where they see that the winning party’s efforts helped improve the status of such persons, they are more inclined to award fees.

4. The number of parties involved in the dispute. Quite often a “family feud” between siblings will be less likely to merit an award.

How are fees determined? The court uses a method known as “lodestar” to determine the “reasonable and necessary” attorney’s fees of the winning party. Where the winning party has a contingency fee agreement with their attorney, the fee award tends to be computed by taking the attorney’s standard hourly rate and multiplying it by the hours he/she devoted to the case. The amount of the contingency fee itself, with rare exceptions, is not considered the attorney’s fee for award purposes.


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