It is well accepted law that an Executor of an Estate may use Estate assets to defend any challenges levied against the Will and any provisions contained therein. So long as what is challenged is the Will itself or a provision therein, an Executor may hire an attorney to defend the Estate. Any counsel fees incurred in defending against a challenge to the Will would be payable through the Estate by the Executor. On the other hand, there are limitations as to when an Executor may utilize Estate assets to defend against claims related to non-probate assets.

While it is acceptable for an Executor to utilize Estate assets to defend against challenges to a Will or a provision therein, a different standard applies if a challenge is levied against a non-probate asset. A non-probate asset is defined as an asset which does not pass through the Decedent’s Estate, but instead, may pass by right of survivorship, or another instrument outside of the Last Will and Testament. At times, these non-probate transfers may benefit the Executor of the Estate to the exclusion of other beneficiaries of the Estate. If a challenge is levied against a non-probate transfer, however, an Executor is forbidden from utilizing Estate assets to defend against a challenge to non-probate assets which solely benefits the grantee. The case law is well established that an Executor or other person may not utilize Estate assets to defend a transaction which benefits only the Executor to the exclusion of the Estate. Should such payments made by an Executor utilizing Estate assets, these assets may be payable back to the Estate.

Often times during a Will contest there may be a challenge levied against both the Last Will and Testament or provision therein, as well as to the transfer of non-probate assets. An Executor which is defending such an action must be careful to clearly identify when counsel fees are generated on defending the Will or any provision therein, as compared to when counsel fees are generated concerning non-probate assets. The counsel fees must be clearly separated and delineated so that Estate assets are not improperly utilized to pay for the defense of non-probate assets which benefit the solely Executor or other person.

It is suggested that in the context of a Will contest, that an Executor carefully consult with their attorney to make sure that the delineation of counsel fees are clearly separated between probate and non-probate assets.