Who Pays the Attorney Fees in a Trust or Estate Dispute?

You are fairly sure your uncle has been mishandling your grandmother's trust, and you are about to pay a lawyer to find out. The question that decides whether you go forward is a practical one: if you are right, do you get that money back, and if you are wrong, could you end up paying his lawyer too?

The starting point in Washington is that each side pays its own attorney fees unless a statute, a contract, or a recognized ground in equity says otherwise. Trust and estate disputes have a statute, and it is a broad one. Under RCW 11.96A.150, the court may, in its discretion, award costs, including reasonable attorney fees, to any party, to be paid by any other party, from the assets of the estate or trust, or from a nonprobate asset that is the subject of the case. So the honest answer is that the judge decides, case by case, based on what is equitable.

What Does RCW 11.96A.150 Actually Say?

The court sets the amount and manner of payment it determines to be equitable, and it has wide latitude on what to consider. The court may weigh any and all factors it deems relevant and appropriate, and the statute says those factors may, but need not, include whether the litigation benefits the estate or trust.

It applies broadly. The section covers all proceedings governed by Title 11 RCW, including proceedings involving trusts, decedents' estates, and guardianship matters, and it applies in the superior court and on appeal. It is part of the Trust and Estate Dispute Resolution Act, which is explained in what TEDRA is and how it works.

What the statute does not say matters as much. It does not say the winner gets fees, and it does not use the phrase "prevailing party" at all. The word that controls is "may." Because the statute speaks of "any party," winning is neither required for a fee award nor a guarantee of one.

What Does It Mean When Fees Come "From the Estate" or "From the Trust"?

When fees are paid from the estate or trust, nobody outside the family is paying. The money comes off the top, and every beneficiary's share shrinks. If you are one of three equal beneficiaries and the trust pays $60,000 in combined legal fees, you have paid $20,000 of it.

That is why the "benefit to the estate" factor matters. A petition that clears up an ambiguous will helps everyone who takes under it. A petition that only shifts money from one beneficiary to another helps one person, and a court may see less reason to charge the cost to everyone.

When Does a Trustee or Personal Representative Pay Personally?

A fiduciary whose own misconduct caused the fight can be ordered to pay out of pocket. The Washington Supreme Court did exactly that in In re Estate of Jones, 152 Wn.2d 1 (2004). The court upheld the removal of a personal representative for breaches of fiduciary duty and held that he should personally pay the other beneficiaries' attorney fees, because the litigation was made necessary by his breaches.

Two probate statutes point the same direction. RCW 11.68.070 lets a party petition for a finding that a personal representative breached a fiduciary duty or exceeded his or her authority, and lists an award of fees and costs under RCW 11.96A.150 among the remedies. RCW 11.76.070 allows the court to enter judgment for reasonable attorney fees against a personal representative when a beneficiary reasonably had to hire a lawyer to compel an accounting or to resist an erroneous one, and the personal representative ends up charged with further liability.

Can the Fiduciary Use Estate or Trust Money for a Lawyer?

Often, yes, at least to start. Under RCW 11.48.210, an attorney who performs services for the estate at the personal representative's request is paid out of the estate in the amount the court finds just and reasonable. For trusts, RCW 11.98.070 gives a trustee the power to engage lawyers and to prosecute or defend a legal proceeding to protect trust property and the trustee in the performance of the trustee's duties.

So a beneficiary may be funding the case personally while the fiduciary draws on the estate or trust. That is not the last word. RCW 11.48.210 also lets the court deny or reduce a personal representative's compensation for failing to discharge the duties of the office, and RCW 11.96A.150 lets the court move the cost of the fight onto the fiduciary personally at the end, as in Estate of Jones.

Is the Rule Different in a Will Contest?

Will contests have their own cost statute. Under RCW 11.24.050, if the will is revoked, the assessment of costs is in the court's discretion. If the will is sustained, the court may assess costs against the person who contested it, and those costs include reasonable attorney fees unless it appears the contestant acted with probable cause and in good faith.

RCW 11.96A.150 says it is not limited by RCW 11.24.050, so the broader equitable power is available too. The article on how to contest a will in Washington covers the rest of that process.

Where the Statutes Leave Less Discretion

After a TEDRA arbitration, a party may demand a new trial in superior court. Under RCW 11.96A.310, the prevailing party in that new trial must be awarded costs, including attorney fees, and the statute says this rule takes precedence over RCW 11.96A.150.

Under RCW 11.96A.320, a party who has to get a court order compelling someone to comply with the mediation and arbitration procedures is entitled to the fees incurred in getting it, unless the court decides otherwise for good cause.

And under RCW 11.72.006, someone other than the personal representative who petitions the court for a partial distribution is assessed the costs and a reasonable attorney fee for the benefit of the estate, a trap discussed in can heirs get money before probate closes.

How Is This Different From a Divorce?

People who have been through a divorce sometimes expect the same rule. In a divorce, RCW 26.09.140 lets the court order one spouse to pay the other's fees after considering the financial resources of both parties. RCW 11.96A.150 has no need-and-ability test. A beneficiary of modest means has no built-in claim to fees from a wealthier relative.

A Worked Example

Suppose Megan is a beneficiary of a trust and her uncle Dale is the trustee. Megan petitions the court, claiming Dale lent trust money to his own business. If the court finds a breach, it has authority under RCW 11.96A.150 to order Dale to pay Megan's fees personally. If the court finds Dale acted properly, it could leave each side's fees where they fell, allow the trust to cover Dale's defense, or order Megan to pay some of it. Nothing in the statute guarantees any one of those results.

Weigh the Fee Risk Before You File

Fee exposure is part of the decision to bring or defend one of these cases, alongside the strength of the evidence and the amount at stake. The Law Office of Chad Foster advises beneficiaries, trustees, and personal representatives on that calculation. Call 425.785.8679 to talk with a Snohomish County probate attorney about a trust or estate dispute.