What Happens If You Lose a Will Contest?

What losing a will contest actually changes, and what it doesn't: whether the will stands, who ends up paying costs, and Florida's rule on no-contest clauses.

Losing a will contest doesn't erase your legal costs, and it doesn't automatically punish you beyond the loss itself, at least not in every state. Three things actually change: the will you challenged stays admitted to probate, the money already spent on the case isn't automatically recovered from the other side, and, depending on the state, a court may have discretion to direct that some of the shared litigation costs come out of your own share of the estate.

What follows uses Florida's probate code as a worked example, because it's the one jurisdiction this site cites statute for directly. Every state runs this differently: a lawyer admitted where the case is being heard is the only reliable source for how your own state handles it.

The will stays admitted to probate

In Florida, a challenge brought against a will that's already been admitted to probate takes the legal form of a proceeding to revoke that probate, filed in the court that already has jurisdiction over the estate's administration. Losing means that court denies the petition rather than granting it, so the will stays admitted.

While the case was pending, Florida law already had the personal representative administering the estate as though no challenge had been filed, except that no distribution could be made in a way that would cut against the rights of whoever would inherit if the will were thrown out. Losing doesn't unwind that administration; apart from that one carve-out, it was never on hold to begin with.

Source: Fla. Stat. §733.109, Revocation of Probate

What losing costs, beyond the case itself

In Florida, losing doesn't automatically make you responsible for the other side's legal bill. The state's probate code says costs "may be awarded as in chancery actions" in all probate proceedings, language that hands the decision to the court's discretion rather than making it automatic.

Separately, under Florida law, the person nominated as personal representative, or a will proponent if that nominated person doesn't act within a reasonable time, is guaranteed their own costs and attorney's fees from the estate regardless of how the case comes out, even if probate is denied or revoked, as long as they were in good faith justified in offering the will in due form for probate.

There's a second layer that can touch a losing challenger more directly under Florida law, but only if you had some existing share of the estate at stake yourself. When costs and fees are being paid from the estate, a Florida court can direct that all or part of that amount come out of one person's share specifically, rather than being spread across everyone with an interest in the estate, and it doesn't need to find that the person acted in bad faith to do it.

Source: Fla. Stat. §733.106, Costs and Attorney Fees

A no-contest clause doesn't automatically follow a loss

Some wills include a clause stating that a beneficiary who challenges the document and loses forfeits what it leaves them, sometimes called a no-contest or in terrorem clause. Whether that actually happens depends entirely on the state, and in at least one state it can't happen at all: Florida makes a provision purporting to penalize someone for contesting a will, or for bringing another proceeding about the estate, unenforceable outright.

How enforcement varies elsewhere is covered in what no-contest clauses actually do.

Source: Fla. Stat. §732.517, Penalty Clause for Contest

Questions worth asking before you decide whether to keep going

1. If I lose, does this state make the losing side pay the other side's legal fees, or does everyone bear their own?
2. Does the will I'm challenging include a no-contest clause, and how does this state treat one?
3. Do I have any existing share under the will that a cost award could reach, even if my challenge fails?
4. Given the strength of the case, is the downside worth what's at stake if it works?

What it costs to contest a will covers the published fee ranges for bringing a claim in the first place; the sections above look at what changes, and what doesn't, once that claim has failed.

General information, not legal advice. The rules described here are Florida's; other states set their own on costs, fee-shifting and no-contest clauses, and only a lawyer admitted where your case would be heard can tell you how they apply to you.