Costs in contentious probate claims: Who pays and how much?

“Surely the estate pays the legal costs?” is one of the most dangerous assumptions in an inheritance dispute.

Sometimes estate funds can properly be used. Sometimes the court orders costs to come out of the estate. But neither outcome is automatic, and an unsuccessful claimant may end up paying a substantial part of the other side’s costs as well as their own.

I have always thought that legal costs should be considered at the beginning of a dispute, not introduced as a nasty surprise after positions have hardened. A claim worth £80,000 looks very different if taking it to trial could expose somebody to a six-figure combined costs risk.

Quick answer: The usual rule in contentious probate and inheritance litigation is that the unsuccessful party is ordered to pay the successful party’s reasonable and proportionate legal costs. The winner rarely recovers every pound spent, while the loser may have to pay their own solicitor and a significant contribution towards the opponent’s costs. Limited exceptions apply in genuine probate validity claims, and an executor may recover properly incurred costs from the estate, but nobody should begin proceedings on the assumption that “the estate will pay”.

This guide explains costs in contentious probate claims in England and Wales, including likely cost levels, the general rule, the probate exceptions, executor costs, Inheritance Act claims, mediation, settlement offers and funding arrangements.

For the underlying types of Will and estate dispute, see my guide to contentious probate and contesting a Will.

Contents

• How much does contentious probate cost?
• What do legal costs include?
• Who pays the costs of a probate dispute?
• Does the winner recover all their costs?
• The probate costs exceptions
• When are costs paid from the estate?
• Can an executor use estate money for legal costs?
• Costs in Inheritance Act claims
• Costs of removing an executor
• How much does probate mediation cost?
• Settlement offers and Part 36
• Funding a contentious probate claim
• How to control contentious probate costs
• Frequently asked questions

How much does contentious probate cost?

There is no dependable average. The cost depends on the legal issue, the evidence, the number of parties, the value and complexity of the estate, the behaviour of those involved and how early the dispute is resolved.

A focused review of a Will and a short advice conference may cost hundreds or a few thousand pounds. A dispute involving detailed pre-action correspondence, medical records, the Will-drafting file and a mediation will commonly reach five figures for each party. A fully contested multi-day trial can cost £50,000 to £100,000 or considerably more per party.

The following figures are broad planning indications rather than quotations:

VAT and expenses such as court fees, expert fees and barristers’ fees may be additional, depending on how the estimate is expressed.

A relatively modest estate can still produce expensive litigation. The court procedure does not automatically become simple merely because the inheritance is small. That is why proportionality must remain central: the commercially sensible outcome may be a compromise rather than a complete legal victory.

What makes a probate dispute expensive?

Costs increase where several historic Wills must be examined, witnesses disagree, medical evidence is needed, fraud or undue influence is alleged, the original Will requires forensic examination or the estate contains a business, farm, overseas property or complex trusts.

Family conduct can be just as important as legal complexity. Repeated allegations, excessive correspondence, refusal to disclose obvious documents and arguments about minor issues all consume chargeable time.

The greatest dividing line is usually whether the case settles. A dispute resolved after one carefully prepared mediation may still be expensive, but it is likely to cost far less than disclosure, witness evidence, expert reports and a multi-day trial.

What do legal costs include?

People sometimes think of “the costs” as one bill. In reality, several different liabilities may exist.

Your own solicitor-client costs

You are primarily responsible for paying your own solicitor under the retainer agreed between you. Those charges may include solicitors’ time, VAT, barristers, experts, court fees, searches, copying and other expenses.

A court order requiring the opponent to pay your costs does not replace that agreement. Your liability to your solicitor and the amount recoverable from the opponent are separate questions.

The opponent’s costs

If the court orders you to pay the opponent’s costs, you may have to pay a substantial contribution towards their reasonable and proportionate legal expenditure.

This is the adverse costs risk. It is additional to the money you owe your own legal team.

Unrecovered costs even if you win

A successful party will rarely recover every pound paid to their solicitor. The difference between the solicitor-client bill and the amount recovered from the opponent is sometimes called the costs shortfall.

The shortfall can be considerable where the court regards work as excessive, unnecessary or disproportionate, or where the hourly rates and amount charged exceed what it considers recoverable from the opponent.

Estate costs

An executor or administrator may incur costs properly in administering and protecting the estate. Those expenses can sometimes be paid from estate funds.

That does not mean the costs disappear. Every £10,000 paid from the estate is £10,000 no longer available for the beneficiaries, subject to any tax consequences or later recovery from another party.

Who pays the costs of a contentious probate claim?

The starting point is the ordinary civil-litigation rule: if the court makes a costs order, the unsuccessful party will generally be ordered to pay the successful party’s costs.

The court has a broad discretion. It decides whether costs are payable, how much is payable and when payment must be made. It can order a party to pay all the opponent’s costs, a percentage, costs from a particular date or only the costs relating to a particular issue.

When deciding the order, the court considers all the circumstances, including:

• the conduct of the parties before and during proceedings;
• whether it was reasonable to raise, pursue or contest a particular allegation;
• the way in which the litigation was conducted;
• whether each party succeeded on all or only part of their case;
• offers made to settle the dispute; and
• failure to comply with an order for alternative dispute resolution or an unreasonable failure to engage in it.

The official rules are set out in Part 44 of the Civil Procedure Rules.

The practical assumption should therefore be:

If you lose, you may have to pay your own costs and a substantial part of the other side’s costs.

A possible probate exception should be treated as an issue for legal assessment, not as the financial plan for the case.

If you win, do you recover all your legal costs?

Usually not.

Unless costs are agreed, they may be assessed by the court. A short application may be dealt with by a summary assessment at or shortly after the hearing. Larger bills may require a separate detailed-assessment process.

Most ordinary costs orders are assessed on the standard basis. The court allows only costs that were reasonably and proportionately incurred and reasonable and proportionate in amount. Doubt is resolved in favour of the paying party.

Even necessary work can be reduced if the overall cost is disproportionate to the value, complexity or importance of the case.

What are indemnity costs?

Indemnity costs are assessed more favourably to the receiving party. Proportionality is not applied in the same way, and doubt about reasonableness is resolved in favour of the party receiving the costs.

They are not awarded merely because one party won convincingly. They are commonly associated with conduct taking the case outside the ordinary course, or with particular consequences under Part 36.

Even on the indemnity basis, unreasonable costs are not automatically recoverable.

Payment on account

Where costs are to be assessed later, the court will normally order a reasonable payment on account unless there is good reason not to do so.

A losing party may therefore face a sizeable payment shortly after judgment, before the final recoverable amount has been established.

The special costs rules in probate validity claims

Will-validity proceedings have limited costs principles that developed from the court’s responsibility to determine which testamentary document represents the deceased’s final valid wishes.

These exceptions should not be overstated. The modern approach starts with the ordinary civil rule, and the courts examine closely any suggestion that an unsuccessful challenger should escape the usual consequences.

First exception: The deceased or residuary beneficiaries caused the litigation

Where the deceased—or, in some cases, people interested in the residue—was genuinely the cause of the litigation, the court may order costs to be paid from the estate.

This is about causation rather than moral blame. Examples might include a confused series of testamentary documents, ambiguous conduct during execution or circumstances created by the deceased that made a judicial determination necessary.

The exception does not mean that every dispute resulting from an unusual Will was “caused by the deceased”. Nor does it apply simply because the deceased disappointed somebody or made statements inconsistent with the final Will.

Second exception: The circumstances reasonably required investigation

Where the surrounding circumstances reasonably required the Will to be investigated, the court may make no order as to costs, leaving each side to pay its own legal expenses.

The question is not merely whether the unsuccessful party acted honestly or believed strongly in the case. They should have taken proper steps to investigate and had a reasonable evidential basis for the inquiry.

The protection can also be limited by time or stage. An initial investigation may have been justified, but continuing after the evidence has provided a clear answer may expose the party to the ordinary costs rule from that point onwards.

This is why the proposition “both parties acted reasonably, so the estate pays” is incorrect. Reasonableness is important, but it does not create a freestanding entitlement to estate funding.

Requiring a Will to be proved in solemn form

There is a further procedural protection under rule 57.7(5) of the Civil Procedure Rules.

A defendant can give notice that they raise no positive case but require the Will to be proved in solemn form and intend to cross-examine the attesting witnesses. The court will not normally order that defendant to pay costs unless it considers that there was no reasonable ground for opposing the Will.

This is a narrow procedure. It is different from positively alleging lack of capacity, undue influence, fraud or defective execution. A defendant advancing such allegations must plead and prove their case and cannot automatically rely on this protection.

See Part 57 of the Civil Procedure Rules.

Do the probate exceptions apply to every estate dispute?

No. Their natural field is a probate claim concerning whether a Will should be admitted to probate.

Claims for financial provision, proprietary estoppel, beneficial ownership, recovery of estate assets and removal of an executor generally remain subject to the ordinary costs principles applicable to civil litigation.

A case may contain both a probate-validity claim and another type of claim. The court can make different costs orders for different issues, periods or parts of the proceedings.

When will legal costs be paid from the estate?

Costs may come from the estate where the court applies the first probate exception, where a personal representative is entitled to indemnity for costs properly incurred, or where the parties reach a settlement or obtain an order providing for payment from estate funds.

None of those possibilities makes estate payment the default.

The distinction between two situations is crucial:

Payment by the estate under a court order or proper indemnity means estate assets bear the cost.

Payment by the losing beneficiary personally means that person pays from their own assets or inheritance.

A settlement sometimes provides for each party’s costs to be paid from the estate. That may make commercial sense, but it is still a negotiated reduction in the fund available for distribution. It is not proof that the litigation costs were legally inevitable or would have been ordered at trial.

Why estate-funded litigation can be unfair to uninvolved beneficiaries

Ordering costs from the estate can make beneficiaries who had no role in the dispute bear part of the financial burden.

For example, a successful residuary beneficiary may establish the validity of the Will but see much of the residue consumed by the unsuccessful challenger’s costs. The court therefore scrutinises estate-funding arguments carefully.

The larger the legal bill becomes, the more important it is to ask whose interests the work genuinely serves.

Can an executor use estate money to pay legal costs?

A personal representative who is a party to proceedings in that capacity will generally be entitled to recover properly incurred costs from the estate, to the extent that they are not recovered from somebody else.

Under rule 46.3, qualifying costs are normally assessed on the indemnity basis.

However, the words properly incurred matter. The court considers whether the executor:

• acted in the interests of the estate;
• sought directions before embarking on risky litigation;
• was in substance pursuing a personal benefit; or
• acted unreasonably in bringing, defending or conducting the proceedings.

See rule 46.3 and the accompanying Practice Direction 46.

The executor’s neutral role

In many Will-validity disputes, an executor can remain neutral, preserve the estate and provide relevant information while the competing beneficiaries argue their positions.

Neutrality does not mean inactivity. The executor may need to safeguard property, deal with urgent tax matters, disclose estate information and take steps to prevent the estate losing value.

But an executor who becomes an enthusiastic partisan—particularly where they are defending their own inheritance—cannot safely assume that every legal bill will be reimbursed from estate funds.

What if the executor is accused personally?

An executor may need to defend allegations of misappropriation, breach of duty or misconduct. The fact that personal relief is sought against them does not by itself remove all possibility of an estate indemnity.

The court will nevertheless examine whether their position and expenditure were proper. An executor found to have acted dishonestly, unreasonably or for personal advantage may be denied reimbursement and ordered to pay costs personally.

Should an executor seek directions before litigating?

Where proposed litigation is substantial or risky, obtaining directions or appropriate costs protection can be important.

An executor who commits the estate to expensive proceedings without properly assessing the merits may later find that the expenditure is not treated as a proper administration cost.

Costs in Inheritance Act claims

A claim under the Inheritance (Provision for Family and Dependants) Act 1975 generally follows the ordinary civil costs rules. The fact that a claimant is a child, spouse, dependant or person in financial hardship does not automatically require their costs to be paid from the estate.

A successful claimant may obtain a costs order, but the amount recovered may be less than the solicitor-client bill. An unsuccessful claimant may have to pay the beneficiaries’ or estate’s costs as well as their own.

Costs can therefore materially affect the net benefit of the claim. A settlement of £60,000 may provide limited practical benefit if the claimant must discharge substantial unrecovered costs, a success fee and an insurance premium.

Conditional-fee success fees after Hirachand

A conditional fee agreement may require a successful claimant to pay an uplift on their solicitor’s ordinary charges. This is the success fee.

The success fee cannot ordinarily be recovered from the losing party through a costs order.

In Hirachand v Hirachand, the Supreme Court also held that a success fee cannot be included, directly or indirectly, as part of the claimant’s substantive financial-provision award under the 1975 Act.

The practical result is that a successful claimant may have to pay the success fee from the award they receive.

The decision and official summary are available from the UK Supreme Court.

My guide to claims by children excluded from a Will explains who may qualify and how reasonable financial provision is assessed.

Who pays the costs of removing an executor?

An application to remove or substitute an executor is not automatically funded from the estate.

The court will look at why the application became necessary and how the parties behaved. An executor who has seriously obstructed the administration or unreasonably resisted a plainly justified replacement may face a personal costs order.

Conversely, a beneficiary who seeks removal on inadequate grounds may be ordered to pay the executor’s costs. The fact that the executor successfully defended the application does not necessarily mean that every expense will fall on the estate; the court retains its discretion.

The cost of the proposed replacement also matters. An independent professional administrator can restore confidence and progress, but their future charges will reduce the estate.

The legal test and procedure are explained in removing an executor in England and Wales.

How much does mediation cost in a probate dispute?

Mediation is not free. Each party usually pays their own solicitor and barrister for preparation and attendance, together with an agreed share of the mediator’s fee and any venue or administration costs.

A full-day mediation involving solicitors and barristers can therefore cost several thousand pounds or more for each participant. A complicated case requiring extensive preparation may cost substantially more.

That can feel expensive for a single day. The fair comparison, however, is not with doing nothing. It is with the future cost of statements of case, disclosure, witness evidence, experts, applications, trial preparation and the trial itself.

Who pays the mediator?

The mediator’s fee is commonly divided equally, although the parties can agree another arrangement. Each side usually bears its own preparation and representation costs unless the eventual settlement provides otherwise.

The fact that one party agrees to pay more of the mediation cost does not necessarily amount to an admission about the underlying claim.

Can refusing mediation affect costs?

Yes. The court can consider whether a party unreasonably failed to engage in alternative dispute resolution or failed to comply with an ADR order.

A party is not required to accept an unreasonable settlement. But refusing even to explore a suitable process, or attending without genuine authority to negotiate, may have costs consequences.

Settlement offers and Part 36 costs

A settlement offer is not merely a figure placed on the table. Its form and timing can change the eventual costs outcome.

Part 36 of the Civil Procedure Rules creates a formal system of offers with specified consequences. An offer can be made before or after proceedings begin and can relate to the whole claim, part of it or a particular issue.

If a claimant fails to beat a defendant’s Part 36 offer

Unless the court considers it unjust, the defendant will generally be entitled to its costs from the expiry of the offer’s relevant period, together with interest on those costs.

A claimant can therefore win some money at trial but still face a damaging costs result because they should have accepted an earlier offer.

If a claimant beats their own Part 36 offer

Unless unjust, the claimant may obtain enhanced consequences from the end of the relevant period, including indemnity costs, interest and an additional amount subject to the statutory limits.

Probate disputes and all-or-nothing outcomes

A Will-validity claim may appear difficult to compromise because the Will is either valid or invalid. Nevertheless, parties can settle their financial interests, agree variations or resolve connected claims.

A carefully framed offer can still provide powerful protection. An incorrectly drafted offer may not produce the intended Part 36 consequences, so technical compliance matters.

The rules appear in Part 36 of the Civil Procedure Rules.

How can a contentious probate claim be funded?

No single funding arrangement is best for every case. The appropriate option depends on the claim’s prospects, likely recovery, opponent, available evidence and the client’s ability to withstand adverse costs.

Private payment

The client pays the legal bills as the matter proceeds. The solicitor may charge hourly rates or agree fixed fees for defined pieces of work.

A staged approach can be useful: first investigate and advise, then decide whether to fund correspondence, mediation or proceedings. This avoids committing at the outset to the cost of a trial that may never happen.

Before-the-event legal expenses insurance

Some home, motor, bank-account or other insurance policies contain legal-expenses cover. The wording, insured events, notification requirements and freedom to choose a solicitor vary.

Cover should be checked early. An insurer may refuse assistance where notification is late or significant costs were incurred before approval.

Conditional fee agreements

Under a conditional fee agreement, some or all of the solicitor’s base charges depend on the outcome. This is often described as “no win, no fee”, but that phrase can conceal important liabilities.

The agreement should explain:

• which charges are payable if the case loses;
• the success fee payable if it succeeds;
• responsibility for barristers, experts and other expenses;
• whether the client must pay the opponent’s costs if unsuccessful; and
• what happens if the client rejects advice or ends the agreement.

A CFA does not automatically protect against adverse costs. The success fee will not normally be recoverable from the opponent and, following Hirachand, cannot be added to a substantive 1975 Act award.

After-the-event insurance

After-the-event insurance may cover some or all of the opponent’s costs and specified expenses if the case fails.

The premium may be deferred and payable only if the case succeeds, depending on the policy. It is not generally recoverable from the opponent in a probate claim and may therefore be deducted from the settlement or award.

Cover is subject to limits and conditions. A policy may not respond if the insured withholds information, rejects reasonable advice or continues after the insurer withdraws support.

Damages-based agreements

Under a damages-based agreement, the lawyer’s payment is calculated by reference to the sum recovered. These arrangements are less common in probate work and are unsuitable for some forms of non-monetary relief.

The percentage and treatment of expenses should be examined carefully because the deduction from a successful recovery can be substantial.

Third-party litigation funding

A commercial funder may pay some or all of the litigation costs in return for an agreed payment from the recovery.

Funders usually consider only claims with strong prospects, a sufficient financial return and an opponent capable of satisfying the outcome. Their return can be a significant proportion of the inheritance or award.

Litigation loans

A loan may fund legal costs, but interest can accumulate quickly during a long dispute. The cost of borrowing must be included when deciding whether the claim remains economically worthwhile.

The fact that somebody expects an inheritance does not guarantee that the litigation will produce enough to repay the loan.

How to control the cost of an inheritance dispute

Identify the real legal claim

Do not pay to contest the validity of a Will if the real complaint is inadequate financial provision or executor delay. Different problems require different remedies.

The main categories are explained in my contentious probate guide.

Investigate before alleging wrongdoing

Obtain the Will, grant, earlier Wills, Will-drafting information, relevant medical records and a reliable chronology before making allegations of fraud, coercion or incapacity.

A short period of disciplined investigation is usually cheaper than issuing a broad claim and discovering later that the documents do not support it.

Ask for stage-by-stage estimates

Request estimates for defined stages, such as initial advice, the letter of claim, obtaining records, mediation and proceedings to the first case-management hearing.

An estimate is not necessarily a fixed cap, but it provides a point against which changes can be explained and decisions made.

Understand the combined risk

Ask not only, “How much will my solicitor cost?” but also:

“What might I fail to recover if I win?”

“What could I owe the other side if I lose?”

“What success fee, insurance premium or funder’s return will be deducted?”

The combined figure is the true litigation risk.

Keep correspondence focused

Legal fees increase when every family email is copied to the solicitor for a detailed response. Keep a chronology, group questions together and distinguish information that matters legally from material that merely illustrates an unhappy relationship.

Use experts only where needed

A medical, handwriting or valuation expert should answer a defined question. Commissioning an expensive report before the factual evidence is assembled may produce an answer to the wrong issue.

Make realistic offers early

An offer made after nearly all trial costs have been incurred may settle the case but does little to save money.

Offers should be reviewed as evidence develops. A position that was reasonable before disclosure may become difficult to defend afterwards.

Consider the net result

A legal entitlement is not the same as a sensible financial outcome.

Before rejecting a proposal, compare the amount likely to be achieved at trial with the extra legal costs, adverse-costs exposure, funding deductions, delay, tax and uncertainty. Litigation undertaken entirely “on principle” can consume the asset over which the principle arose.

Frequently asked questions about costs in contentious probate claims

Treat costs as part of the merits, not an afterthought

The question is not simply whether a probate claim can be won. It is whether the likely result justifies the cost and risk required to obtain it.

A strong claim can become commercially unattractive if it is pursued inefficiently. A weaker claim may justify careful investigation but not a trial. An executor may properly spend estate money protecting the administration, yet lose that protection by turning a neutral role into a personal campaign.

The safest approach is to calculate the whole exposure early: your own charges, the possible shortfall after recovery, the opponent’s costs, funding deductions and the effect on the estate. Review that calculation whenever the evidence or settlement landscape changes.

Good costs decisions do not require abandoning principle. They require understanding what the principle may cost—and who will actually pay for it.

For related guidance, visit my probate and estate administration guides.

Last legally reviewed: 5 August 2026

This guide is based on general principles of English and Welsh law, is intended for informational purposes only, and does not constitute legal advice or establish a professional relationship.

About the author, Clare Lowes