Trusts and Estates

Ca. Trs. & Estates Quarterly 2018, Volume 24, Issue 2


By B. James Brierton* and Ashley E. Rathbun**


"Even where successful, the beneficiaries must bear their own attorney fees in contesting an accounting of an estate."1 This statement of the law surprises many beneficiaries, who expect some reimbursement if they prove that their fiduciary did them wrong. Indeed, most probate litigators have or will suffer through the excruciatingly painful moment of explaining to a client why a judge denied the client’s demand for attorney’s fees even though the client won the case on the merits. Far too frequently, the depressing reality of this result is that the client suffers a net financial loss due to the high costs of litigation. Even in cases less damaging to the prevailing party, litigants will be perplexed by the perceived unfairness of a civil justice system that makes the good guy pay his or her own costs and fees while the bad guy’s fees are paid by the trust or probate estate.

This lack of fee shifting arises from the so-called "American Rule" codified in the Code of Civil Procedure section 1021. Under the American Rule, attorney’s fees, except as specifically provided by statute, are determined by agreement of the parties.2 Enacted in 1872, the codification of the American Rule promotes the public policy of protecting and promoting the rights of citizens to access the court as a forum to resolve civil disputes in a peaceful, non-violent manner.3 The rule, however, is perceived by many litigants as creating substantial unfairness, at least in trust and estate cases in which no agreement between the litigating parties was possible and in which the parties frequently perceive that equity warrants the recovery of attorney’s fees against non-prevailing parties.

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