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If you are the decedent’s closest living relative and have been omitted from the will, you are probably considering contesting the will. What are the pros and cons of contesting the will? How much does it cost to contest a will? The decision to contest a will would depend on the value of estate being contested and the cost of contesting the will.
The cost of contesting a will depends on your payment agreement with your lawyer and the stage in which the matter is concluded.
Payment terms with your lawyer
Your payment agreement with the lawyer will dictate how much your will contest will cost. Most lawyers will charge an hourly basis on will contests, ranging from $500 to $700 per hour, with a retainer agreement of about $10,000 that serves as an advance deposit on the lawyer’s hourly fees.
In exceptional cases, a lawyer will accept your case on contingency fee. Under this arrangement, you don’t have to pay your lawyer his legal fees unless he is able to successfully recover an award or settlement for you. This success fee, the lawyer’s contingent fee that is generally 1/3 of the award or settlement, is paid in addition to the lawyer’s legal fees. Lawyers typically propose contingency fees in will contests when your case is strong and the value of the estate involves at least hundreds of thousands of dollars.
Stages of a will contest
There are usually four stages, and a will contest may conclude during either of the stages.
- preliminary negotiations
- the initial probe
- the will contest discovery process
- the trial
Preliminary negotiations
When you are the closest living relative of the decedent, the lawyer of the executor will send you a letter, giving you a copy of the will and asking you to sign a waiver and consent. A waiver and consent, once signed, shows the court that you consent to the reliefs stated in the probate petition. If you do not sign this waiver and consent, the court will issue a citation directing you to show cause why the court should not grant the petition to probate the will.
Receiving this waiver and consent means that you are a mandatory party in the probate petition, and you have the right to object to the probate of the will. Your lawyer can send a letter to the executor’s lawyer informing the latter that you are not signing the consent and waiver. This will begin the process of mediation to see whether your claim can be settled out-of-court. If your claim is settled out-of-court, your costs to contest the will are minimal.
The initial probe
An initial probe allows a potential objectant to discover evidence that is not readily accessible, limited to 3 years prior to execution of the will and 2 years after or until the date of decedent’s death, whichever is earlier (the “3/2 period”). Documents discovered under the initial probe allow the potential objectant to make a decision on whether or not there is valid ground to contest the will. In New York, the initial probe is called a SCPA § 1404 proceeding.
You can examine the following individuals through deposition:
- witnesses
- attorney-draftsman
- nominated executors
- any other relevant person by court order
You can also request for the production of relevant documents, such as the attorney-draftsman’s notes and the decedent’s medical and pharmacy records, limited to the 3/2 period, to help you decide whether to challenge the will or not.
When your case is settled during the initial probe, the costs in contesting the will at this time range between four to five figures, depending on the documents produced and complexity of the case.
The will contest discovery process
After the initial probe and when objections have been filed, the will contest discovery process continues. Here, more documents are discovered and depositions of all parties familiar with the matter are completed. At this point, costs of a will contest may be at the low to mid-five figure range.
The trial
When parties have completed discovery and the objectant wishes to continue, trial will ensue. When your claim reaches trial, expect to pay between mid to high-five figure range in legal fees.
If you are successful in your objection against the probate of the will, the likelihood is high that you will be able to recover some, if not most, of your legal expenses from the estate. This is because your action is deemed to be beneficial for the estate. If your claim is unsuccessful, you will be liable to pay for your own legal fees. For this reason, it is essential to make a cost benefit analysis on whether it is worthwhile to contest a will, given the value of the estate and the strength of your claim.
If you would like to contest a will and you are considering your options, we at the law offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
