Who Pays the Legal Fees in a Contentious Probate Case?

May 2025

In the period after a death, it’s not uncommon for there to be arguments about the money or property the person who has died has left behind. Whether this is because of concern over the validity of the Will or the result of a disagreement about how the estate should be distributed, it can lead to situations that can be very difficult to manage.

If you’re involved in a matter of contentious probate like this, it’s important to seek specialist legal advice and to carefully consider what your solicitor tells you. Depending on the facts of the matter and the individuals who are involved, it may be possible to seek legal action over a dispute. However, though there can certainly be a possibility of achieving significant financial redress, it’s vital to weigh this up against the risks of things not going the way you hoped.

Legal matters involving contentious probate can be incredibly longwinded and expensive. It can take months or even years to get a conclusion to your challenge or claim, and the process could leave you tens of thousands of pounds out of pocket. This is especially likely to be true if the matter goes all the way to court, though there can still be significant legal costs involved if the matter is settled before it goes that far.

Before you decide to make a claim against an estate or raise a challenge against a Will, it’s important to ensure you know all the facts about the process. It’s particularly vital to ensure you’ve considered all possibilities in regards to who will be responsible for covering the legal fees.

Plenty of the people we talk to have these have misconceptions about these situations. Often, it’s believed either that:

1. The legal fees will be covered by the estate of the person who has died, or,
2. The losing party will have to pay the cost of the winning party’s legal fees as well as their own.

Though both of these statements can be true in some situations, the reality is rarely so clear cut.

Who pays legal fees in the first instance?

During the course of the legal process, all parties will typically need to pay their own legal fees as they go along. How this will be done will depend on your agreement with your solicitor. Often they will bill for work on a monthly or quarterly basis. In some situations, legal professionals may agree to postpone their payment until the conclusion of the matter, but this is by no means the norm.

However, after a claim or challenge is concluded, the court may make a ruling on one party or another being responsible for covering all legal costs that have been amassed as a result of the case.

Will legal fees be covered by the estate?

 The estate of the person who has died is not generally responsible for paying the cost of legal fees in any case brought against it. The exception to this is in relatively rare situations where the court may determine that the fault lies with the person who has died. This could be because a claim or challenge had to be brought as a result of a confusing Will. In a matter like this, the court would have the power to rule that the legal fees should be covered by the estate.

 Will legal fees be covered by the losing party?

 It is true that the general pattern in contentious probate cases is that the losing party will be ordered to cover most, if not all, of the winning party’s legal costs. However, this is rarely as straight-forward as it sounds. Because of this, the winning party should not expect to walk away from the matter with no remaining costs at all.

Even if the matter is very clear-cut and the losing party is ordered to pay everyone’s legal costs, typically this will translate to only around 75%-80% of the winning party’s costs actually being covered.

It’s also important to keep in mind that the court will not automatically rule that the losing party must cover costs. This is completely in the discretion of the court, and they may decide that everyone should cover their own legal expenses.

What could this mean for you?

 If you’re thinking about raising a challenge or a claim, it’s really important to make sure you have carefully considered all possible outcomes. You should never take on a legal matter on the basis of believing that the costs of doing do will ultimately be covered by someone else.

As covered above, even if you do win, you may still be responsible for your own legal expenses, and this could significantly eat into any capital you have been awarded.

Our experienced solicitors can offer bespoke advice on how to proceed in a dispute. Please don’t hesitate to get in touch if you think we may be able to help.