When a trust, estate, or guardianship matter erupts into litigation, fiduciaries such as trustees, personal representatives, and guardians often assume their attorneys’ fees will be paid from the trust or estate. That assumption is understandable because Washington law generally treats a fiduciary’s litigation expenses as a cost of trust or estate administration.
In practice, that assumption may not hold when a dispute involves allegations of fiduciary misconduct. Under Washington State’s Trust and Estate Dispute Resolution Act (TEDRA), courts have broad discretion to award attorneys’ fees to any party and to from any party, and fiduciaries who act in bad faith, unnecessarily prolong litigation, or otherwise breach their fiduciary duties, may under appropriate circumstances be ordered to pay attorney’s fees personally, including, in some cases, fees incurred by other parties.
TEDRA’s fee-shifting statute, RCW 11.96A.150, gives courts broad discretion to award attorneys’ fees “to any party, from any party” in any amount and in any manner the court determines to be “equitable” after considering whatever factors it finds relevant. In this context, “equitable” means fair under the circumstances, not constrained by rigid rules. That flexibility reflects the practical that judges in trust and estate cases are often less concerned with technical victories than with whether the dispute could have been avoided through diligent and good-faith fiduciary conduct.
Washington courts have consistently recognized that, in appropriate circumstances, a trial court may require any party to trust and estate litigation to pay fees personally. For fiduciaries, that risk flows from the fundamental duties they owe to beneficiaries, including the duties of loyalty, care, diligence, and good faith. When a fiduciary refuses to account, withholds information, delays distributions, mismanages assets, or treats estate or trust property as their own personal property, beneficiaries may be forced to bring suit simply to obtain what should have been provided to them in the first place.
In the author’s experience, many TEDRA disputes begin not with outright misconduct, but with communication breakdowns such as a failure to provide information, delayed accountings, or decisions that beneficiaries perceive as self-interested. Once trust erodes, litigation often follows. Washington courts have recognized that fee awards against fiduciaries may be appropriate in certain circumstances, particularly where the court concludes that a fiduciary’s conduct materially contributed to the dispute or otherwise warrants fee shifting on equitable grounds.
Although decided before TEDRA, the Washington Supreme Court’s decision in Allard v. Pacific National Bank (1983), laid some of the groundwork for the principles courts apply today. In Allard, a corporate trustee cut corners and sold trust real property in a private sale without determining its fair market value. Applying TEDRA’s predecessor statute RCW 11.96.140 (now repealed), which authorized fee awards “as justice so requires,” the Court held that the trustee’s breach of fiduciary duties justified imposing attorneys’ fees personally. After remand and a subsequent appeal, the Court upheld all challenged portions of a $1 million attorneys’ fee award in favor of the beneficiaries. The Court affirmed that the fees were payable by the trustee, a local bank, from its own assets, rather than from the trust.
Under TEDRA’s current equitable framework, courts have expanded continued this approach. In the notorious case of In re Estate of Jones (2004), the Washington Supreme Court applied RCW 11.96A.150 against a personal representative, Russell K. Jones, who blurred the line between his fiduciary role and his personal interests as a beneficiary. While serving as personal representative, Jones lived rent-free in an estate-owned house, operated his law practice from the property, deeded the house to himself before closing the estate, failed to pay rent and expenses, undervalued the property for purposes of distribution to himself, and put approximately 17,000 miles on an estate-owned car. The Court described his behavior as “appalling,” upheld his removal, and affirmed a fee award payable by him personally. The Court’s reasoning remains instructive today.
More recently, the Washington Court of Appeals’ decision in In re Estate of Boatman (2021) underscored the limits of personal fee exposure for fiduciaries under TEDRA. In Boatman, a successor personal representative, Beverly Young, brought a TEDRA action on behalf of the estate. When the estate did not prevail, the trial court assessed more than $124,000 in attorneys’ fees and costs jointly and severally against the estate and Young personally. But on appeal, the court vacated the award as to Young personally, holding that, in the absence of a breach of duty or other inexcusable conduct, personal liability was not appropriate.
The Boatman decision serves as an important reminder that TEDRA is not intended to punish fiduciaries for making difficult judgment calls. Trustees and personal representatives frequently face competing demands and imperfect information. As Boatman demonstrates, the absence of a breach of duty or other inexcusable conduct may weigh against imposing personal fee liability, although fee determinates remain highly dependent on the facts and equities of the individual case.
Taken together, Allard, Jones, and Boatman reflect a consistent theme in Washington trust and estate litigation: personal fee liability is often less about whether a fiduciary won or lost and more about whether the fiduciary fulfilled the obligations of the role. The reported decisions suggest that courts evaluating fee requests under TEDRA will look beyond the ultimate outcome of the litigation and consider the conduct of the parties and the circumstances giving rise to the dispute.
Facing a Trust or Estate Dispute?
Because RCW 11.96A.150 grants courts broad discretion, fee determinations are inherently fact-specific and depend on the unique circumstances of each case. At Stokes Lawrence, our experienced Trust & Estate Litigation Team represents personal representatives, trustees, beneficiaries, heirs, and creditors in complex disputes throughout Washington. If you are involved in a trust or estate dispute, including one that involves the potential to shift fees to a fiduciary, we are available to evaluate your position, identify available evidence, and help protect your interests.
Disclaimer. This article is provided for general informational purposes only and does not constitute legal advice or a legal opinion. Every matter is different, and case outcomes depend on the specific facts and circumstances of each situation. Although Stokes Lawrence, P.S., strives to ensure the accuracy of the information presented, the law is continually evolving, and the information contained herein may not reflect the most recent legal developments or the current state of the law. You should consult competent legal counsel licensed in the appropriate jurisdiction regarding your particular circumstances. Reading, accessing, or relying on this article or website does not create an attorney-client relationship with Stokes Lawrence, P.S.
