Who Pays Attorney Fees When a Will Is Contested in Texas?

Marcus Webb had already made one costly assumption about his sister. In 2024, after their father passed away in McKinney, Texas, Marcus — appointed executor under his father's 2019 will — discovered that his younger sister Priya had convinced their father to sign a new will just three weeks before he died. The new document, witnessed by two of Priya's friends, left her 80 percent of the estate and Marcus 20 percent, reversing the equal split their father had maintained for years.

Marcus believed the new will was invalid. His father had been on high doses of opioids following hip replacement surgery. By the accounts of the home-health nurses who visited daily, the man could barely tell you what month it was, let alone recall the identities of his children and grandchildren — the legal standard Texas courts call "the natural objects of his bounty." Marcus had a case.

But when he called the first estate attorney he could find, the attorney quoted a $15,000 retainer with a warning that a full will contest could run $50,000 to $100,000, depending on how hard Priya's side fought back. What happened next is the same thing that happens in thousands of Texas families every year: Marcus made an assumption. He assumed that whoever spent that money would have to absorb it personally. If he lost the contest, he'd be out $50,000 on top of receiving the smaller inheritance. If he won, he'd have spent most of what he'd recovered. He began thinking about settling for terms he considered unfair.

What that first attorney had not told him — and what a second attorney explained in the very first consultation — was that the Texas Estates Code had already resolved the question of who bears the cost of a will contest. And the answer is almost never what families expect.

The Rule Most Families Never Hear

Texas Estates Code § 352.052 governs attorney fees in proceedings to defend or contest a will. It contains three distinct rules — one for executors, one for beneficiaries defending the will, and one for people who contest it. All three share a common thread: in the right circumstances, the estate pays the legal fees, not the individual litigants out of their own pockets.

This does not mean will contests are free. It does not mean every party automatically recovers their fees. What it means is that the financial structure of will-contest litigation in Texas is fundamentally different from what most people assume when they first hear a retainer quote and back away from the fight.

Rule 1: The Executor Defends in Good Faith — Win or Lose, the Estate Pays

Under § 352.052(a), an executor or administrator named in a will who defends that will — or prosecutes any proceeding to have it admitted to probate — in good faith and with just cause shall be allowed out of the estate their necessary expenses and disbursements, including reasonable attorney's fees. The statute uses the word "shall." That is not discretionary language. The court does not have the option to refuse if the executor meets the standard.

The critical phrase is whether or not successful. An executor who fights a will contest in good faith, with legitimate reasons to believe the will is valid, and loses — that executor's attorney fees still come from the estate. The executor does not write a personal check for the legal battle they waged on behalf of the estate's beneficiaries.

This is the rule that changed Marcus's calculation entirely. As executor defending his father's 2019 will, his attorney fees were not coming out of his personal savings. They were coming from the estate itself. If he lost, the fees were still an estate expense. If he won, the same was true.

Rule 2: A Beneficiary Defending the Will May Also Recover

§ 352.052(b) extends similar protection to people named as devisees or beneficiaries in the will being defended. A beneficiary who, in good faith and with just cause, steps up to defend the will or prosecute a proceeding to have it admitted to probate may be allowed their expenses and fees from the estate. Note the shift in language: "may be allowed" is discretionary, giving the court flexibility, but the door is open.

This matters in cases where the executor is also a contestant, has a conflict of interest, or declines to defend. A beneficiary who steps into the breach is not necessarily doing so at personal financial risk. The court can, and regularly does, award those fees from the estate when the defense was conducted in good faith.

Rule 3: A Successful Contestant May Recover — But Only if They Win

§ 352.052(c) covers the opposite side of the courtroom: the person challenging the will. An "interested person" who, in good faith and with just cause, successfully prosecutes a proceeding to contest the validity of a will may be allowed their expenses and attorney's fees out of the estate. The word "successfully" is key here. Unlike the executor's rule in subsection (a), this one requires victory.

The statute defines who qualifies as an "interested person" for this purpose by exclusion: it does not include creditors or other parties holding claims against the estate. Heirs, beneficiaries under a prior will, and other family members with a genuine stake in the estate's distribution are the typical candidates.

What this means practically: a surviving child who contests a will on undue influence grounds and wins a court ruling invalidating it has a statutory basis to ask the court to award their attorney's fees from the estate — the same estate they are now entitled to share in under the prior will or intestacy.

What "Good Faith and Just Cause" Actually Requires

All three rules in § 352.052 require that the proceeding be brought or defended in good faith and with just cause. Texas courts have interpreted this standard over decades, and it is not a rubber stamp. It asks whether the party had a legitimate, honest belief that their legal position was sound — not whether they were guaranteed to win.

A will contest brought on fabricated claims of undue influence, without any credible evidence, is not in good faith. An executor who defends a will the executor knows was forged is not acting in good faith. The standard protects parties who face genuine legal uncertainty and pursue their position honestly, not parties who litigate in bad faith or without factual support.

The "just cause" element focuses on whether there was a reasonable legal and factual basis for the proceeding. In testamentary capacity cases like Marcus's father's situation — a surgery, heavy opioids, nurse testimony about confusion — the factual record may well meet the standard even if the contest ultimately fails.

What § 352.052 Does Not Cover

Several important limits define the boundaries of this statute.

It covers will-related proceedings. Section 352.052 specifically addresses proceedings to defend or contest a will's admission to probate, or a will's validity. It does not automatically govern every dispute that arises during estate administration — a fight over executor conduct, a breach of fiduciary duty claim, or a dispute over asset distribution may be governed by different fee rules or by the general American rule that each party pays its own fees.

The fees come from the estate, not from the opposing party. Texas § 352.052 does not create a fee-shifting mechanism that makes the losing party pay the winner's fees. It creates a mechanism for the estate to pay the fees of parties who acted in good faith. If Priya loses a will contest, she does not owe Marcus's attorney fees personally. The estate absorbs them.

The court still exercises judgment on amount. Even when fees are appropriate, the court reviews them for reasonableness. A $300,000 bill for a straightforward uncontested defense is not automatically recoverable just because the statute allows fees. Texas courts apply a reasonableness analysis to the amount requested.

Creditors cannot use § 352.052(c). A party whose primary interest in the estate is recovering a debt or claim — not an inheritance — is explicitly excluded from the contestant fee rule in subsection (c). This prevents creditors from bootstrapping a will contest into a vehicle for recovering litigation costs.

The Practical Calculation for Texas Families

For most families facing a will contest, the § 352.052 framework changes the financial analysis in two important ways.

First, if you are the executor and you have good-faith grounds to believe the will you are defending is valid, your attorney fees are an estate expense, not a personal liability. The legitimate question becomes whether the estate is large enough to absorb the legal costs and still leave meaningful assets for the beneficiaries — not whether you personally can afford to fight.

Second, if you are considering contesting a will because you believe it was procured by undue influence, executed when the testator lacked capacity, or is fraudulent, you should know that winning the contest creates a statutory path to fee recovery from the estate. The standard requires genuine good faith and actual success, but the door is not closed.

Neither of these points means litigation is free or without risk. Will contests are among the most expensive and emotionally demanding legal proceedings in Texas probate. Cases that run two or three years, produce mountains of medical records and deposition testimony, and end in a jury trial can consume a significant portion of any estate. The § 352.052 rules tell you who writes the check — the estate — but the estate still bears the cost, which ultimately comes from the inheritance everyone was fighting over in the first place.

This is why most experienced Texas probate litigators begin the conversation not with "can you afford to fight?" but with "is this estate worth fighting for, and do the facts support it?" The two questions are different, and § 352.052 is why.

Back to McKinney — What Marcus Did

Once Marcus understood the fee structure, he retained a probate litigation attorney, filed a will contest based on lack of testamentary capacity, and conducted discovery. The home-health nursing records documented his father's confusion in detail. Priya's witnesses were friends who had visited twice. The case settled before trial, with the estate distributing under terms close to the original 2019 will.

The attorney fees — from the estate — ran just under $28,000. Marcus did not write a personal check for a dollar of it.

He later said the hardest part was the first call. "I thought I couldn't afford to fight," he told his attorney after the settlement. "Nobody told me that wasn't the right question."

Speak With a Texas Probate Litigation Attorney

Will contests in Texas involve complex procedural rules, tight filing deadlines, and fact-intensive standards that determine whether a party acted in good faith. Therese Gutierrez, WG Law's probate litigation attorney, reviews contested estate matters and can help families in McKinney, Frisco, Allen, Plano, and throughout Collin County understand their options before making any decisions.

WG Law offers a free probate case review for probate matters — a straightforward intake review to determine whether your situation warrants further legal consultation. There is no obligation, and the review is handled confidentially.

Call 214-250-4407 or request your free probate case review online. Our intake team will connect you with the right attorney for your situation.

This article is general information about Texas law and does not constitute legal advice. Will contest outcomes depend on specific facts, applicable statutes, and judicial discretion. Consult a licensed Texas probate attorney about your particular situation.