Who Pays Trust Litigation Attorney Fees?

A common question that arises during litigation concerning trusts is how the attorney's fees are going to be paid. There are often several parties, trustees, beneficiaries, and potential third parties who are all looking at each other for payment of attorney's fees in contested litigation. The reality of payment and the expense of litigation may come to surprise beneficiaries when they begin to contemplate litigation regarding their trust.

Must Be Necessary & Beneficial

The Texas Trust Code provides that a trustee may employ attorneys, accountants, and agents "reasonably necessary in the administration of the trust estate." In the litigation context, especially in those situations involving potential breaches of trust or breaches of fiduciary duty, the question of whether the trustee's attorney's fees may be paid from the Trust revolves around whether a benefit can be conferred on the trust.