How are Costs Handled in Probate Disputes?

One of the first questions people ask when they have a probate dispute is, “Who’s going to pay for this?” It’s a fair concern.

Contesting a Will or bringing a claim against an estate can involve significant legal costs — and uncertainty about who ultimately bears those costs often puts people off taking action at all.

The reality is that there is no one-size-fits-all answer. Costs in probate disputes depend heavily on the type of claim, how the case is conducted, and how the court views each party’s behaviour.

This guide explains how costs are typically handled, when the estate may pay, and when individuals may be personally responsible.

The General Rule: Costs Follow the Event

In most civil litigation, the starting point is straightforward: The losing party pays the winning party’s legal costs. This principle applies to probate disputes as well — but with important qualifications.

In practice, the court has wide discretion. That means it can depart from this general rule where it considers it fair to do so. Even if the court does award costs, there are never full costs, and there are always some irrecoverable costs, with the standard position being a party will receive back 60-70% of what they have paid, subject to any fixed costs that may apply. If an executor is awarded their costs, they can usually recover any shortfall in costs payable by the other side from the estate

So while “loser pays” is the starting point, it is not a guarantee.

Insurance policies, such as “after the event” (ATE) insurance, can be obtained to cover the winning side’s costs if you lose and are ordered to pay them.

When Are Costs Paid from the Estate?

In some probate disputes, the court may order that legal costs be paid out of the estate itself. In practical terms, this means the cost of resolving the dispute is shared by all beneficiaries — because it reduces the overall value of what is being distributed.

However, this outcome is far from automatic and tends to arise only in more specific circumstances.

Traditionally, there are two main situations where the court may consider it appropriate for the estate to bear the costs:

1. Where the Dispute Was Caused by the Deceased

If the conflict arises because of something the deceased did — or failed to do — the court may consider it fair that the estate carries the cost of resolving that uncertainty.

This might include:

A Will that is unclear, poorly drafted, or internally inconsistent.
Ambiguity over who should inherit or in what proportions.
Circumstances surrounding the preparation of the Will that raise legitimate concerns (for example, capacity or undue influence).

In these situations, the court may take the view that the parties were justified in bringing the matter before it, because the issue stems from the deceased’s own arrangements.

2. Where It Was Reasonable to Investigate the Issue

Even where the Will itself is not obviously defective, there may be cases where it is reasonable for a party to raise concerns and seek clarification.

For example:

There are genuine questions about how the Will was executed.
There is credible evidence suggesting the deceased may not have understood what they were signing.
There are suspicious circumstances that warrant investigation.

If the court agrees that the claim was properly brought and reasonably pursued, it may decide that the estate should cover some or all of the costs — even if one party is ultimately unsuccessful.

It is also important to highlight that an executor or administrator defending a claim against an estate is not automatically entitled to recover their fees from the estate unless a Beddoe Order was in place before launching or defending a claim. To ensure the executor or administrator does not end up personally liable for costs, a Beddoe Order should always be considered.

A More Restrictive Approach in Practice

While these principles still apply, the courts have become increasingly cautious about allowing estates to fund litigation.

The modern approach is more focused on:

Encouraging parties to resolve disputes without court involvement.
Discouraging weak or speculative claims.
Ensuring that beneficiaries are not unfairly penalised by unnecessary legal costs.

As a result, even where a dispute relates to the deceased’s actions, the court will still look closely at how the parties have conducted themselves.

Mixed Outcomes Are Common

In many cases, the court may take a blended approach rather than making a single, clear-cut order.

For example, it may:

Order that part of the costs is paid from the estate, and part by an individual party.
Decide that each party should bear their own costs.
Adjust cost liability depending on specific issues within the case.

This reflects the fact that probate disputes are often fact-sensitive and involve multiple overlapping issues.

The Key Point

While it is possible for costs to be paid from the estate, it should not be relied upon.

The safer assumption is that:

You may be personally responsible for your own costs, and
You may also face liability for another party’s costs if the court considers it appropriate.

This is why taking early legal advice — and approaching any dispute in a measured, proportionate way — is so important.

Ultimately, the court’s focus is on fairness. But fairness does not always mean the estate pays.

When Might You Have to Pay Probate Costs Personally?

If you bring or defend a contentious probate claim, there is a real possibility that you may be personally responsible for legal costs — and this is often the biggest financial risk in these disputes.

While some people assume that “the estate will pay,” the courts do not approach cases that way as a default. In many situations, individuals are expected to bear the consequences of the decisions they make during litigation.

You may be personally liable for costs — particularly where:

Your claim is unsuccessful.
As a starting point, the court may order the losing party to pay a proportion of the successful party’s costs. This is often referred to as “costs following the event.” Even if you acted in good faith, losing the case can still carry financial consequences.
The court considers your position unreasonable.
If a claim or defence is found to lack merit, or to have been pursued beyond what was reasonable, the court may take a stricter approach to costs. This can apply even where parts of the case had some basis, but the overall position was disproportionate.
You fail to engage constructively in the process.
Litigation is not just about the legal arguments — it’s also about conduct. Refusing to negotiate, ignoring settlement offers, or failing to comply with court directions can all lead to adverse cost consequences.
You pursue weak or speculative arguments.
Bringing a claim without proper evidence, or relying on assumptions rather than substantiated facts, can expose you to significant cost risk. The court is unlikely to look favourably on claims that appear to be exploratory rather than grounded in a solid legal basis.

What ‘Personal Liability’ Actually Means

Personal liability for costs can go beyond simply paying your own solicitor.

Depending on the outcome, you may be ordered to:

Pay your own legal fees.
Contribute to — or fully cover — the other party’s legal costs.
Pay costs on a more serious basis (such as “indemnity costs”) in cases of particularly unreasonable conduct.

These sums can be substantial, especially in disputes involving high-value estates or multiple parties.

Partial Success Still Carries Risk

It’s also important to understand that cost outcomes are not always all-or-nothing.

If you succeed on some issues but lose on others, the court may:

Reduce the amount of costs you recover
Order you to pay a proportion of the other side’s costs
Decide that each party should bear their own costs.

This means that even a “partial win” can still result in a financial loss once costs are taken into account.

Why Early Advice Matters

Given the potential financial exposure, taking early legal advice is essential.

A solicitor can help you:

Assess the strength of your claim or defence realistically
Identify evidential gaps before proceedings begin
Understand the likely cost risks involved
Develop a strategy that is proportionate to the value of the dispute.

In many cases, early advice also helps avoid litigation altogether — either by resolving the matter through negotiation or by identifying where a claim may not be viable.

Different Types of Probate Claims, Different Cost Outcomes

Not all probate disputes are treated the same way when it comes to costs. The type of claim you bring — and the legal basis for it — can have a significant impact on how the court approaches cost liability.

Understanding these differences is important, as it helps set realistic expectations about financial risk from the outset.

Challenging the Validity of a Will

Disputes about whether a Will is legally valid often arise in sensitive and uncertain circumstances — for example, where there are concerns about:

Lack of mental capacity
Undue influence or pressure
Improper execution
Suspicious surrounding circumstances.

Because of this, the court may take a more flexible approach to costs, particularly where there were genuine grounds to investigate what happened.

In some cases, this can mean:

Costs being paid from the estate, especially if the issue stems from how the Will was prepared
Each party bears their own costs, where it was reasonable for the matter to be examined.

However, this flexibility has limits.

If a party:

Pursues allegations without proper evidence
Continues a claim after it becomes clear it is unlikely to succeed
Uses the dispute as a means of applying pressure rather than resolving a genuine issue,

then the court may take a stricter approach and order that party to pay costs personally.

In short, while validity disputes may sometimes justify estate-funded costs, they still carry real financial risk if not handled carefully.

Claims Under the Inheritance Act

Claims brought under the Inheritance (Provision for Family and Dependants) Act 1975 are generally treated more like standard litigation.

This means the court is less likely to treat them as “neutral” disputes and more likely to apply the usual principle that:

Costs follow the event
The unsuccessful party is typically ordered to contribute to the successful party’s costs.

These claims focus on whether the claimant has received “reasonable financial provision” from the estate. Because this is a discretionary and fact-sensitive assessment, outcomes can be difficult to predict.

As a result:

Even a reasonably arguable claim may not succeed.
Parties may take different views on what is “reasonable”.
Settlement is often encouraged to avoid cost risk.

The key point is that Inheritance Act claims carry a higher likelihood of personal cost exposure, particularly if a claim is unsuccessful or pursued too aggressively.

Importantly, executors must defend these neutrally, and may only be able to recover their legal costs from the estate if they obtained a Beddoe Order as above.

Executor and Trustee Disputes

Where disputes involve executors or trustees — for example, disagreements about how an estate is being administered — the costs position can be more nuanced.

Executors have a legal duty to act in the best interests of the estate and its beneficiaries. If they act:

Properly
Reasonably
In accordance with their duties,

they are often entitled to have their legal costs paid from the estate. This reflects the fact that they are acting in an official capacity, rather than for personal gain.

However, that protection is not absolute. An executor may be personally liable for costs if they:

Act outside the scope of their authority
Mismanage the estate
Delay matters unnecessarily
Take positions that favour one beneficiary unfairly
Fail to follow professional advice
Fail to obtain a Beddoe Order in bringing or defending a claim.

Similarly, beneficiaries who challenge executors may face cost consequences depending on the strength of their case and how they conduct it.

A Practical Perspective

From a practical point of view, the type of claim often influences:

Whether settlement is likely or advisable
How aggressively a case should be pursued
The level of financial risk you are taking on.

In many situations, even a strong claim needs to be weighed against the potential cost exposure if things do not go as expected.

Approaching the dispute with a clear understanding of both legal merits and cost risk is essential to making informed decisions.

The Role of Conduct

One of the most important — and sometimes overlooked — factors in any costs decision is how the parties behave throughout the dispute.

The court is not only concerned with who “wins” or “loses.” It also looks closely at whether each party has acted reasonably, proportionately, and in line with the expectation that disputes should be resolved as efficiently as possible.

In practice, this means your conduct can directly affect whether you recover costs — or end up paying more than you expected.

What the Court Looks At

When deciding who should pay costs, the court will consider conduct across the entire life of the case, including:

Whether parties attempted to resolve matters early
Did you try to address the issue before starting proceedings? Early correspondence, clear positions, and genuine attempts to resolve the dispute can all work in your favour.
Willingness to engage in mediation or settlement discussions
Courts actively encourage alternative dispute resolution. Refusing to mediate — particularly without good reason or silence on a mediation invitation — can lead to cost penalties, even if you ultimately succeed at trial.
Whether the positions taken were reasonable
It’s not just about whether your argument is legally valid, but whether it is proportionate. Overstating a claim, ignoring obvious weaknesses, or taking extreme positions can be viewed negatively.
How the case was presented and managed
This includes complying with court deadlines, properly disclosing information, and avoiding unnecessary complications. Poor case management can increase costs — and the court may reflect that in its decision.

Examples of Unreasonable Conduct

Certain behaviours are more likely to attract adverse cost consequences.

These can include:

Refusing to negotiate or engage with the other side
Ignoring reasonable settlement offers
Withholding relevant information or documents
Pursuing arguments that have little or no evidential support
Escalating the dispute unnecessarily or increasing costs without justification
Using litigation as a way to achieve an ulterior motive, such as causing distress or harassment to the other party.

Importantly, the court expects parties to act pragmatically. Litigation is not intended to be a battleground where every point is fought regardless of cost — it should be a proportionate process aimed at resolution.

You Can ‘Win’ — And Still Lose on Costs

A common misconception is that winning the case guarantees recovering your costs.

In reality, if the court considers your conduct to have been unreasonable, it may:

Reduce the amount of costs you can recover
Order you to pay a portion of the other side’s costs
Decide that each party should bear their own costs.

This means that even a successful outcome on the main issue can be offset by poor conduct during the process.

Conduct Cuts Both Ways

It’s also worth noting that good conduct can strengthen your position.

If you:

Make sensible settlement proposals
Engage constructively with the other party
Keep your approach proportionate
Comply fully with court procedures

the court is more likely to view your position favourably when deciding cost.

Talk to a Litigation Specialist

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Book a one-on-one consultation: enquire@bbc-law.co.uk

Can Costs Be Reduced or Managed?

Yes — and in many probate disputes, this becomes a central part of the overall strategy.

Costs are not just something that happens at the end of a case. They can be actively managed throughout, and the decisions you make early on can significantly impact your financial exposure.

Taking a structured, proportionate approach can often reduce both the total cost of the dispute and the risk of being ordered to pay the other side’s costs.

Early Legal Advice

One of the most effective ways to manage costs is to take advice at an early stage.

A solicitor can help you:

Assess the strength of your claim or defence realistically
Identify any evidential weaknesses before proceedings begin
Understand the likely range of outcomes
Avoid pursuing claims that are unlikely to succeed
Assess the proportionality of likely fees against any award from the court.

This early assessment often prevents unnecessary escalation and helps you make informed decisions about whether litigation is proportionate.

Mediation and Alternative Dispute Resolution

Mediation is strongly encouraged in probate disputes — and for good reason.

It allows parties to:

Resolve issues more quickly than through the courts
Retain control over the outcome, rather than leaving it to a judge
Reduce legal fees associated with prolonged litigation.

Courts expect parties to consider mediation seriously. Refusing to engage without good reason can itself lead to cost consequences.

In many cases, even where positions initially seem far apart, mediation can lead to a practical compromise that avoids the cost and uncertainty of trial.

Settlement Offers and Cost Protection

Making well-timed and realistic settlement offers can be an important way to protect your position on costs.

In particular, Part 36 offers (formal settlement offers under the Civil Procedure Rules) can have significant cost consequences.

If:

You make a reasonable offer, and
The other party refuses it, but
Fails to achieve a better outcome at trial

the court may order them to pay additional costs or interest.

This makes settlement strategy a key tool not just for resolving disputes, but for managing financial risk.

Proportionate Litigation

Not every issue needs to be contested — and trying to fight every point can quickly increase costs.

A proportionate approach involves:

Focusing on the key issues that genuinely affect the outcome
Avoiding unnecessary arguments or technical disputes
Keeping the scale of the case aligned with the value of the estate.

For example, it may not be cost-effective to pursue a marginal issue if the legal fees involved outweigh the potential benefit.

This kind of disciplined approach is something the court expects — and it can also influence how costs are ultimately awarded.

Ongoing Review and Strategy

Cost management is not a one-off decision. It requires regular review as the case develops.

This might involve:

Reassessing the strength of the case as new evidence emerges
Considering settlement at different stages
Adjusting strategy to reflect changing risks or costs.

Being willing to adapt — rather than taking a fixed or overly rigid position — can help avoid unnecessary expense.

The Bigger Picture

One of the key practical realities in probate disputes is that costs come out of the same overall pot — whether directly or indirectly.

The longer a dispute continues:

The more legal fees are incurred
The more the estate may be reduced
The less ultimately remains for those involved.

For that reason, managing costs is not just about protecting your own position — it’s often about preserving value for everyone.

Probate Dispute Cost FAQs

How much do probate disputes typically cost in the UK?

Costs can vary widely depending on the complexity of the case, the value of the estate, and how far the dispute progresses.

Straightforward matters resolved early may involve relatively modest costs, while contested cases that proceed to trial can run into tens of thousands of pounds or more. This is why early advice and resolution are often key to managing financial risk.

Can both sides agree to pay their own legal costs?

Yes — this is quite common, particularly where a dispute is settled early.

As part of a negotiated settlement, parties may agree that each side covers its own costs. This can be a practical way to draw a line under the dispute and avoid further expense or uncertainty.

What happens to costs if a probate dispute settles before court?

If a dispute is resolved before trial, the parties usually agree on costs as part of the settlement.

This might involve:

Each party paying their own costs
One party contributing to the other’s costs
Costs being factored into the overall financial settlement

The exact outcome will depend on the negotiations and the relative strength of each side’s position.

Can legal costs delay the distribution of an estate?

Yes — ongoing disputes can significantly delay the administration of an estate.

Executors may be unable to distribute assets until claims are resolved, particularly if there is a risk that funds will be needed to cover legal costs or potential awards. This can leave beneficiaries waiting months or even years for final distribution.

Are legal costs taken into account when deciding whether to bring a claim?

They should be.

Before starting a claim, it’s important to weigh:

The likely legal costs
The value of what you may recover
The risk of having to pay the other side’s costs.

In some cases, even a strong claim may not be commercially sensible if the costs are likely to outweigh the benefits.

Can an executor refuse to pay legal costs from the estate?

Executors have a duty to protect the estate, so they cannot simply agree to pay costs from it without proper justification, or in some circumstances, the absence of a Beddoe Order.

If costs are disputed, the court may need to decide whether they should be paid from the estate or by an individual party. Executors who act unreasonably in this context may themselves face cost consequences.

What is a costs order and how does it work?

A costs order is a decision by the court about who should pay legal costs at the end of a case.

It may require one party to pay all or part of another party’s costs, or set out a different arrangement depending on the circumstances. The exact amount is often assessed separately if not agreed.

Can you insure against probate dispute costs?

In some cases, yes.

There are insurance products — sometimes called “after the event” (ATE) insurance — that can help cover the risk of paying the other side’s costs if a claim is unsuccessful. Availability depends on the strength of the case and other factors.

Do all probate disputes go to a full trial?

No, and many do not.

A large number of probate disputes are resolved through negotiation or mediation before reaching trial. This is often encouraged because it reduces costs, shortens timescales, and allows more flexible outcomes.

Can multiple parties be responsible for costs?

Yes — particularly in disputes involving several beneficiaries or claims.

The court may decide to divide responsibility for costs between multiple parties, depending on their involvement, the issues they raised, and how they conducted themselves during the case.

Resolve Your Legal Dispute with Confidence

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When to Seek Legal Advice

You should consider taking advice if:

You are thinking about contesting a Will
You have been notified of a claim against an estate
You are acting as an executor and facing a dispute
You are concerned about the cost risks involved.

Understanding the likely cost position early can help you make informed decisions about whether — and how — to proceed.

How We Can Help

The contentious Probate Team at Burt Brill & Cardens advises clients on disputes involving Wills, estates, and inheritance claims, including clear guidance on the costs and the risks involved. Whether you are considering bringing a claim, defending a dispute, or acting as an executor, we can help you understand your position, manage potential cost exposure, and take a proportionate approach to resolving matters.

Contact the team on 01273 604123 to discuss your situation. Alternatively, you can reach us by email at enquire@bbc-law.co.uk or make an enquiry.