Reverse contingency fees for defendants

The reverse contingency fee some lawyers offer defendants in a will or trust dispute: how it's priced, the ABA's three conditions, and what isn't established.

Executors, personal representatives and trustees are the usual defendants when a will or trust is challenged, or when someone raises a concern about how they're administering it.

What it costs to contest a will covers the published fee ranges and how probate litigators charge for this work, from the side of someone bringing a claim. The section below sets out the fee option built for the other side.

Either way, reaching an agreement is a separate question from paying for whichever side's lawyer. Probate vs. trust settlement agreements in Florida covers the settlement route directly.

How the fee is priced

Hourly billing is open to a defendant too. What's specific to this side is a "reverse" contingency fee, priced on what a defendant saves rather than on what anyone recovers.

The ABA has held that this kind of arrangement is not prohibited by the Model Rules for a defendant in a civil case, provided the amount saved is reasonably determinable, the fee is reasonable in amount under the circumstances, and the client's agreement to the fee arrangement is fully informed. The opinion adds that a reverse contingent fee places increased burdens of disclosure on the lawyer, beyond the reasonableness requirement, in order to obtain that informed consent.

Source: D.C. Bar Legal Ethics Opinion 347, quoting ABA Formal Opinion 93-373

That general civil-litigation rule shows up in probate work specifically too. At least one probate litigation firm's own site describes being able to defend a will contest "on a contingency basis or pay-at-the-end arrangement," depending on the circumstances.

Not every case will qualify for it. By the same firm's account, most lawyers will not take an estate dispute over personal property, such as furniture or collectibles, on a contingency basis, and the case has to be pretty strong. How often a reverse fee actually gets offered in probate work hasn't been established from any public data, and this page isn't claiming it's common.

Source: Skatoff PA, "Probate Contingency Lawyer"

Fee options by role

Role	Hourly	Contingency
Bringing the challenge	Available	Offered in some matters; ask what's driving a firm's decision either way
Defending the estate	Available	A reverse fee, priced on what's saved rather than recovered, exists as a recognized arrangement; how often it's actually offered isn't established

Availability differs by firm and by state. Ask directly rather than assuming either row applies to you.

Questions worth asking if you're defending the estate

How to choose a probate litigator covers what to ask at a first consultation generally. These are specific to the fee question from the defending side.

• Would you ever consider a fee based on what you save the estate, instead of hourly billing throughout?
• If not, is that this firm's general policy, or a view about this specific claim?
• What would you expect this to cost through to a resolution, and does that change if the matter goes to trial?

This page is general information, not legal advice. It doesn't tell you what fee arrangement is available in your own situation. Fee structures, including whether a firm offers a reverse or standard contingency arrangement at all, differ by firm and by state.