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How do I pay the costs of probate litigation or trust litigation?

If you want to challenge a will or trust or want to remove an executor or trustee then you have two options.  You can hire a probate or trust litigator on an hourly basis or on a contingency fee.  An hourly fee agreement is a traditional arrangement. In this agreement, a client deposits money in their lawyers client trust account. The lawyers pays the out of pocket costs of probate litigation and the hourly fee from the money on deposit.  If the case ends and there is money left over then the unused funds get returned to the client.  If the money on deposit runs out during the litigation then the client is responsible for depositing more money. This will ensure the litigation continues.

A contingency fee agreement for a will contest, trust contest, executor or trustee removal action is similar to a contingency fee agreement in personal injury cases.  The probate litigation firm will advance all the costs of probate litigation and isn’t paid a fee while the case is being litigated.  When the case ends, the attorney is paid a percentage of the property recovered and the out of pocket costs of probate litgation are reimbursed.

If you are the executor or trustee then the probate estate or trust’s assets can be used to pay your attorney to defend the litigation.  For that reason and a host of others, executors and trustees always retain their attorneys on an hourly fee basis.

Contingency (noun):

Payment for legal services that depends on the attorney being able to recover or win an award in the case. The payment is then a percentage of the amount recovered. This amount can vary based on if the case goes to trial or if it is settled.

Executor (noun):

Person named in a Will as the person who will make sure that the instructions in the Will are followed. They are responsible for executing the Will, and are either appointed by the court or by the deceased person. They are responsible for taking care of a deceased person’s financial obligations. Financial obligations include disposing of property and paying bills and taxes. The executor must also make certain that the deceased last wishes are carried out according to the Will.

Scott Grossman

Scott Grossman


The Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307

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