With any legal case, there are several factors to consider in deciding whether to appeal, as discussed in my previous blog, “To Appeal or Not to Appeal. That is the Question.” But in addition to those factors, there are certain features of trust and estate matters in particular that should be considered.

Determining Whether an Order is Appealable

First, there are special rules regarding which orders in trust and estate matters are appealable. In general, Rule 103.03 of the Rules of Civil Appellate Procedure lists several types of orders that are appealable. But that list includes the catchall phrase “other orders or decisions as may be appealable by statute…” One such statute is Minn. Stat. § 525.71, which lists 17 types of probate court orders that are appealable. It is sometimes difficult to understand whether a particular order falls within the categories of Minn. Stat. § 525.71. For this reason, it is especially important to consult with an experienced appellate attorney when faced with an adverse probate court order.

Attorney Fees

Another consideration unique to trust and estate appeals is that usually the trustee or personal representative will have their attorney fees paid by the trust or estate. In some cases, beneficiaries or others may also be able to recover attorney fees from the trust or estate. Appeals can be expensive. As a result, an appeal in a trust or estate matter may significantly diminish the assets that will ultimately be distributed. Attorney fees therefore need to be considered in weighing the costs and benefits of an appeal.

Standards of Review

Any party considering an appeal should also be aware of the standard of review that the appellate court will apply. If the issue is the interpretation of a trust document or a will, it will be reviewed de novo, which means the appellate court gives no deference to the trial court’s interpretation of the document. But factual findings, such as the mental capacity of the person executing the instrument, or whether a trustee or a personal representative violated their fiduciary duties, are reviewed for clear error. This means it is not enough that the appellate court would have reached a different conclusion than the trial court. The appellate court must be left with a definite and firm conviction that a mistake has been made. It is important to consult with an appellate attorney to understand the standard of review that would apply to the specific issues you wish to appeal.

Other considerations

Finally, the nature of trust and estate matters can raise significant non-legal considerations. These cases often involve family disagreements or the loss of a loved one. There may be benefits to putting the dispute to rest, even if one believes the trial court’s decision was wrong.


For more information, please contact Michelle Kuhl.