Paying the Other Sides Attorney Fees

Henry received a shocking letter last month: his sister, Emily, was suing him, claiming he manipulated their mother into changing her will. Worse, the letter demanded he pay Emily’s attorney fees – on top of his own legal costs. He’d done everything right, or so he thought. Henry’s story isn’t unusual. Disputes over wills and estates often escalate quickly, and California law can unexpectedly require you to cover the other side’s legal bills.

As an estate planning attorney and CPA with over 35 years of experience, I’ve seen this happen far too often. It’s a painful lesson: winning a probate case doesn’t always mean escaping financial liability. Understanding when you might be on the hook for opposing counsel’s fees is crucial. This is particularly true because estate litigation tends to be expensive.

When Might You Have to Pay the Other Side’s Fees?

The short answer is: it depends. California generally follows the “American Rule” regarding attorney fees – each side pays their own. However, several exceptions apply in probate matters. The most common involve challenging the validity of a will, contesting a trust, or acting with bad faith.

Specifically, Probate Code § 8250 dictates that an executor is generally entitled to use estate funds to defend the validity of the will. However, this right is not absolute. If the executor is defending against their own removal for misconduct, they may have to pay their own legal fees unless they win.

What About Will Contests?

California Code of Civil Procedure § 1032(a)(4) allows a court to award attorney’s fees to the prevailing party in a will contest if the contest was brought without reasonable cause. What constitutes “reasonable cause” is fact-specific, but it generally means you had a good faith belief, based on objective evidence, that the will was invalid. Simply disliking the will’s provisions isn’t enough. A contest motivated by greed or personal animosity is likely to result in a fee award against you.

My CPA background is also incredibly valuable here. Often, a will contest revolves around the valuation of assets, or the step-up in basis. If the contest centers on questions of value, and you are relying on unsubstantiated claims, you could face significant liability for opposing counsel’s fees. Capital gains implications are also a huge factor in these cases, and a thorough understanding of those rules is essential.

Bad Faith Conduct – A Costly Mistake

Even if you believe you have a valid claim, acting unreasonably or maliciously can trigger a fee award. This includes intentionally delaying the proceedings, concealing evidence, or making baseless accusations.

I’ve had clients try to hide assets during discovery, thinking they could get away with it. This almost always backfires, and results in penalties, plus the other side’s attorney’s fees. Remember, Probate Code § 1000 means the rules of evidence and discovery in probate are the same as in civil lawsuits, so beneficiaries have the right to issue Subpoenas for bank records and compel Depositions of the executor or other parties.

The Double Damages Rule – When Mistakes Are Very Expensive

Let’s say the facts suggest someone unduly influenced your mother before her death. The stakes are high, and you suspect a misappropriation of assets. If you can prove undue influence, fraud, or bad faith, the consequences are severe.

Probate Code § 859 states that if a person uses undue influence, fraud, or bad faith to take estate assets, the court can order them to return the property PLUS pay a penalty of twice the value of the assets recovered. This ‘double damages’ statute is the most powerful weapon in probate litigation.

What About Disputes Over Real Property?

Often, family members disagree over who owns a specific piece of property. Mom put your name on the deed, but the estate claims it. These situations are especially fraught with emotion and legal complexity. A Section 850 Petition allows the Probate Court to act like a Civil Court and issue orders transferring title. Attorney fees can be awarded in these cases, so careful analysis is vital before initiating litigation.

As your attorney, my goal is not simply to win your case, but to minimize your overall risk. This includes carefully evaluating the strength of your claims, and advising you on the potential financial consequences of pursuing litigation.

What determines whether a California probate estate closes smoothly or turns into litigation?

The path through California probate is rarely a straight line; it requires precise adherence to statutory deadlines, accurate asset characterization, and strict fiduciary compliance. Without a clear roadmap, what begins as a standard administrative proceeding can quickly dissolve into a costly battle over interpretation, valuation, and beneficiary rights.

Ultimately, the difference between a routine distribution and a protracted legal battle often comes down to preparation. By anticipating the demands of the Probate Code and addressing potential friction points with beneficiaries and creditors upfront, fiduciaries can navigate the system with greater confidence and lower liability.

Verified Authority on California Probate Litigation

• Double Damages (Bad Faith Taking): California Probate Code § 859
  The “nuclear option” of probate litigation. If the court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate, the judge may assess liability for twice the value of the property, in addition to recovering the asset itself.
• Grounds for Removal of Executor: California Probate Code § 8502
  This statute lists the specific legal reasons a judge can fire a Personal Representative. Common grounds include wasting or mismanaging assets, neglecting the estate (moving too slow), or having an incurable conflict of interest with the beneficiaries.
• The “850 Petition” (Title Disputes): California Probate Code § 850
  Probate litigation often revolves around ownership. This powerful petition allows the probate court to solve title disputes without filing a separate civil lawsuit. It is used when an asset is titled to a third party but belongs to the estate (or vice versa).
• Presumption of Undue Influence (Caregivers): California Probate Code § 21380
  To prevent elder abuse, California law makes it incredibly difficult for paid caregivers to inherit from their patients. The law presumes the gift was the result of undue influence, forcing the caregiver to prove their innocence in court, often requiring a “Certificate of Independent Review.”
• Civil Discovery Rules Apply: California Probate Code § 1000
  Probate is not just administrative; it is a court of law. This code section confirms that the standard rules of civil practice apply. This means litigators can use interrogatories, depositions, and demands for production of documents to build their case against a rogue executor.
• Extraordinary Fees (Litigation Costs): California Probate Code § 10811
  Litigation is not covered by the standard statutory fee. Attorneys can petition the court for “extraordinary fees” for litigation services (e.g., defending a will contest or recovering stolen property). These fees are billed hourly and must be approved by the judge.