Who Pays the Attorney Fees When Contesting a Will in North Dakota?

Discovering that an aging parent in Fargo, Bismarck, or Grand Forks signed a sudden, suspicious deathbed will leaving the entire family estate to a caretaker or manipulative sibling immediately raises a critical financial question: how much will it cost to fight it in court, and whose bank account pays the lawyers? Because estate litigation can involve medical record subpoenas, handwriting experts, and multi-day courtroom trials, fear of overwhelming legal bills often stops rightful heirs from challenging a fraudulent will.

Understanding who pays the attorney fees when contesting a will in North Dakota requires separating the statutory protections given to court-appointed personal representatives from the strict American Rule applied to challenging beneficiaries. Before filing a formal objection or defending a contested estate, consulting a skilled North Dakota probate litigation lawyer from our directory can help you evaluate fee-shifting exceptions, hourly versus contingency arrangements, and strategies to stop a rogue fiduciary from draining the estate to fund their personal defense.

How North Dakota Law Allocates Legal Fees in Will Contests

North Dakota generally follows the American Rule, meaning each party in civil litigation pays their own attorney fees unless a specific statute or equitable doctrine authorizes shifting those fees to the estate or an opposing party. In probate court, that statutory authority is governed primarily by N.D. Cent. Code § 30.1-18-20 and N.D. Cent. Code § 30.1-18-21.

When the Estate Pays the Executor's Legal Fees

Under N.D. Cent. Code § 30.1-18-15, a personal representative is authorized to employ attorneys to advise and assist in estate administration. More specifically, N.D. Cent. Code § 30.1-18-20 states that if any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, that person is entitled to receive from the estate necessary expenses and disbursements, including reasonable attorney's fees incurred.

In Matter of Estate of Flaherty, 484 N.W.2d 515 (ND Supreme Court 1992) and Estate of Hass, 643 N.W.2d 713 (ND Supreme Court 2002), the North Dakota Supreme Court held that a benefit to the estate is not measured solely in dollars and cents; a nominated personal representative's good-faith effort to defend and uphold the testamentary intent expressed in a facially valid will benefits the estate and entitles the fiduciary to have their reasonable attorney fees paid out of estate assets, even if the will is ultimately invalidated.

When a Contestant Must Pay Out-of-Pocket

If you are an heir or omitted family member filing a petition to invalidate a will based on lack of testamentary capacity, undue influence, fraud, or improper execution under N.D. Cent. Code § 30.1-15-07, North Dakota law generally requires you to pay your own lawyer. Why doesn't N.D. Cent. Code § 30.1-18-20 cover a challenger's legal bills? In Matter of Estate of Honerud, 326 N.W.2d 95 (ND Supreme Court 1982) and Matter of Estate of Rohrich, 496 N.W.2d 566 (ND Supreme Court 1993), the North Dakota Supreme Court explained that an attorney hired by a contesting beneficiary represents that individual client's personal financial interest in capturing a larger share of the inheritance rather than the common interest of the estate as a whole.

However, if a challenger is contesting a subsequent codicil or later will while serving as the nominated personal representative under an earlier valid will, and prosecutes that proceeding in good faith to uphold the decedent's true testamentary intent, they may qualify for estate-paid fees under N.D. Cent. Code § 30.1-18-20. Additionally, keep in mind that under N.D. Cent. Code § 30.1-20-05, even if your will contest clause (no-contest or in terrorem clause) threatens disinheritance, that penalty is legally unenforceable in North Dakota if probable cause exists for instituting the contest.

Fee-Shifting When a Fiduciary Breaches Their Duty or Acts in Bad Faith

There are two major situations where North Dakota probate courts shift the financial burden of legal fees:

• Equitable Common Fund Recovery for Beneficiaries: In Matter of Estate of Rohrich, 496 N.W.2d 566 (ND Supreme Court 1993), a beneficiary sued two co-personal representatives who tried to pay improper claims and hid stock income. Because the beneficiary's lawsuit recovered money that increased the total value of the estate for the common benefit of all heirs, the North Dakota Supreme Court affirmed an equitable award paying the beneficiary's attorney fees directly out of the estate.
• Disallowing Fees of a Bad-Faith Executor: If a personal representative procured the will through their own undue influence or fraud, or spends estate money defending their own personal misconduct rather than benefiting the estate, their defense is not in good faith under N.D. Cent. Code § 30.1-18-20. Under N.D. Cent. Code § 30.1-18-21, beneficiaries can petition the District Court to review all legal fees paid from the estate and compel the executor or their attorney to refund excessive or unauthorized payments. Furthermore, if any party brings a completely groundless claim, N.D. Cent. Code § 28-26-01 authorizes the court to award attorney fees for a frivolous claim, and N.D. Cent. Code § 28-26-31 penalizes pleadings not made in good faith.

Contingency vs. Hourly Fee Structures for Probate Litigators in North Dakota

Because paying $200 to $375 per hour out of pocket can strain a family's budget, North Dakota probate litigators offer three distinct billing arrangements depending on your role and the size of the estate:

• Standard Hourly Retainer: Used in almost all personal representative defenses (where the estate pays monthly invoices) and in smaller or non-monetary beneficiary disputes. Clients typically deposit a $3,500 to $10,000 retainer into a trust account.
• Pure Contingency Fee (33.3% to 40%): Permitted in civil probate litigation under N.D.R. Prof. Conduct 1.5, provided the agreement is in writing and signed by the client. When a disinherited heir is contesting a will involving substantial North Dakota farmland, mineral rights, or investment accounts worth $500,000+, some trial attorneys accept the case on contingency, collecting 33.3% to 40% of the gross inheritance recovered and nothing if the contest fails.
• Hybrid (Reduced Hourly + Contingency Bonus): A popular middle ground in North Dakota will contests where the client pays a reduced hourly rate (such as $125 per hour) plus litigation expenses, paired with a smaller 15% to 20% contingency percentage of the final recovery.

Step-by-Step Process in North Dakota

Whether the probate dispute is filed in Fargo, Bismarck, Grand Forks, Minot, Williston, or Dickinson, managing litigation costs and fee requests follows a clear legal sequence.

Step 1: Gathering Documents and Assessing Probable Cause

Before spending money on a will contest, gather the decedent's prior wills, medical charts showing dementia or cognitive decline, and estate valuations from Form 10, North Dakota, State Court Administrator, Inventory and Appraisement. Having a lawyer confirm documented probable cause protects you against any no-contest penalty clause under N.D. Cent. Code § 30.1-20-05 and against frivolous claim sanctions under N.D. Cent. Code § 28-26-01.

Step 2: Executing a Written Fee Agreement Under N.D.R. Prof. Conduct 1.5

Review hourly, hybrid, or contingency fee options with a North Dakota probate litigator. Under N.D.R. Prof. Conduct 1.5, any contingency fee agreement must be in writing, state the exact percentages for settlement, trial, or appeal, and explain whether court costs and expert witness expenses are deducted before or after the contingent fee is calculated.

Step 3: Filing the Formal Petition to Contest the Will or Object to Appointment

If the will was initially submitted via Form 2, North Dakota, State Court Administrator, Application for Informal Probate and Appointment of Personal Representative, your attorney initiates formal testacy proceedings under N.D. Cent. Code § 30.1-15-01 by filing a verified petition in the appropriate court, such as Cass County District Court, Fargo, Burleigh County District Court, Bismarck, Grand Forks County District Court, Grand Forks, Ward County District Court, Minot, Williams County District Court, Williston, or Stark County District Court, Dickinson.

Step 4: Challenging Improper Estate-Paid Legal Fees Under N.D. Cent. Code § 30.1-18-21

If the personal representative is using estate checking accounts to pay an attorney to defend their own self-dealing or undue influence, file a formal petition for review of compensation and employment under N.D. Cent. Code § 30.1-18-21. Ask the judge to freeze estate fee disbursements until the court determines whether the fiduciary acted in good faith.

Step 5: Negotiating Fee Allocations in a Mediated Settlement

The vast majority of North Dakota will contests settle during court-ordered or private mediation. Under N.D. Cent. Code § 30.1-20-12, all interested parties can sign a binding compromise agreement under N.D. Cent. Code § 30.1-22-02 that explicitly agrees to pay both sides' reasonable attorney fees out of the gross estate before dividing the remaining assets.

Step 6: Submitting Post-Trial Petitions for Fees, Costs, and Disbursements

If the will contest goes to trial, the prevailing party may tax statutory disbursements (such as deposition transcripts, expert witness fees, and service fees) under N.D. Cent. Code § 28-26-06. Any fiduciary or beneficiary seeking estate reimbursement of attorney fees under N.D. Cent. Code § 30.1-18-20 or the common fund doctrine must submit itemized billing affidavits for the District Court judge to review for reasonableness.

How Much Does It Cost in North Dakota?

Budgeting for a North Dakota will contest requires accounting for court filing fees, medical and forensic experts, and attorney compensation:

• District Court Filing Fees: Filing a formal petition to contest a will or open a formal testacy proceeding in North Dakota District Court costs $160 under N.D. Cent. Code § 27-05.2-03, while filing a formal objection or answer within an active probate case costs $100.
• Medical Experts and Deposition Costs: Proving lack of testamentary capacity or undue influence typically requires subpoenaing hospital records, deposing treating physicians and drafting attorneys, and hiring a forensic geriatric psychiatrist or document examiner, costing between $3,000 and $12,000.
• Total Attorney Fee Ranges: Settling a North Dakota will contest through mediation after initial discovery typically costs $7,500 to $20,000 in hourly legal fees, whereas taking a contested multi-day will trial to verdict in District Court often ranges from $25,000 to $75,000+.

How Long Does the Process Take?

Under N.D. Cent. Code § 30.1-12-08, a formal testacy proceeding to contest an informally probated will must generally be commenced within the later of 12 months from the informal probate or 3 years from the decedent's death (unless a prior formal order already adjudicated testacy after notice, which limits vacation petitions under N.D. Cent. Code § 30.1-15-12). Once a formal will contest petition is filed, the court sets an initial hearing after at least 14 days' notice under N.D. Cent. Code § 30.1-03-01. Mediated will contest settlements typically wrap up in 4 to 8 months, while full District Court trials and fee reimbursement rulings take 12 to 20 months.

Frequently Asked Questions (FAQ)