Suing for Double Damages in Probate

Alan just received notice that his mother’s will was admitted to probate. He’s concerned because his brother, Mark, was named executor, and Mark seems to be… “borrowing” from the estate to cover his personal expenses. Alan fears Mark is actively depleting the inheritance, but he doesn’t know where to start. This type of situation—a sibling executor siphoning estate funds—is surprisingly common, and it often leads to a difficult but necessary probate litigation. The good news is, California law provides a powerful tool for recovering stolen assets, and more importantly, punishing the wrongdoer.

For over 35 years, I’ve represented clients in Escondido and throughout San Diego County in these sensitive estate matters. As both an Estate Planning Attorney and a Certified Public Accountant (CPA), I bring a unique perspective to these cases. Many attorneys don’t understand the tax implications of improper asset transfers, leaving clients vulnerable to capital gains taxes or missed step-up in basis opportunities. I do.

What exactly does “double damages” mean in a probate context?

California Probate Code § 859 is a game-changer. If a person uses undue influence, fraud, or bad faith to take estate assets, the court can order them to return the property PLUS pay a penalty of twice the value of the assets recovered. This ‘double damages’ statute is the most powerful weapon in probate litigation. It’s not just about getting the money back; it’s about making the wrongdoer financially accountable for their actions.

What kind of behavior triggers double damages?

“Bad faith” is a broad term, but it generally includes knowingly taking assets the executor isn’t entitled to, concealing information from beneficiaries, or mismanaging the estate’s finances for personal gain. Fraud is more obvious—actively lying or creating false documents. Undue influence is subtler but just as serious. It involves coercing or manipulating an elder into changing their estate plan. This often happens when a caregiver isolates the elder and pressures them into making gifts or altering their will.

How do I prove my sibling is acting in bad faith to get double damages?

This is where skilled legal representation is crucial. You need concrete evidence. Bank statements showing unauthorized transfers, emails or texts revealing questionable intent, and witness testimony can all be powerful. The process begins with filing a Probate Code § 850 Petition to compel the executor to provide an accounting. This forces Mark to disclose all estate assets and financial transactions. Beneficiaries have the right to issue Subpoenas for bank records, medical files, and to compel Depositions of the executor or bad actors – meaning Mark can be forced to testify under oath about his handling of the estate.

What if Mark says he’s “borrowing” the money and will pay it back later?

A simple promise to repay doesn’t negate bad faith. If Mark took the funds without proper authorization from the court or beneficiaries, it’s considered a breach of his fiduciary duty. Remember, an executor is a trustee, legally obligated to act in the best interests of the estate, not their own.

Who pays for all of this litigation?

An executor is generally entitled to use estate funds to defend the validity of the will (Probate Code § 8250). However, if they are defending against their own removal for misconduct, they may have to pay their own legal fees unless they win. This is a significant deterrent, as Mark could be personally responsible for substantial legal costs if he loses the case.

How do enforcement rules in California probate court shape outcomes for heirs and fiduciaries?

The path through California probate is rarely a straight line; it requires precise adherence to statutory deadlines, accurate asset characterization, and strict fiduciary compliance. Without a clear roadmap, what begins as a standard administrative proceeding can quickly dissolve into a costly battle over interpretation, valuation, and beneficiary rights.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on California Probate Litigation

• Double Damages (Bad Faith Taking): California Probate Code § 859
  The “nuclear option” of probate litigation. If the court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate, the judge may assess liability for twice the value of the property, in addition to recovering the asset itself.
• Grounds for Removal of Executor: California Probate Code § 8502
  This statute lists the specific legal reasons a judge can fire a Personal Representative. Common grounds include wasting or mismanaging assets, neglecting the estate (moving too slow), or having an incurable conflict of interest with the beneficiaries.
• The “850 Petition” (Title Disputes): California Probate Code § 850
  Probate litigation often revolves around ownership. This powerful petition allows the probate court to solve title disputes without filing a separate civil lawsuit. It is used when an asset is titled to a third party but belongs to the estate (or vice versa).
• Presumption of Undue Influence (Caregivers): California Probate Code § 21380
  To prevent elder abuse, California law makes it incredibly difficult for paid caregivers to inherit from their patients. The law presumes the gift was the result of undue influence, forcing the caregiver to prove their innocence in court, often requiring a “Certificate of Independent Review.”
• Civil Discovery Rules Apply: California Probate Code § 1000
  Probate is not just administrative; it is a court of law. This code section confirms that the standard rules of civil practice apply. This means litigators can use interrogatories, depositions, and demands for production of documents to build their case against a rogue executor.
• Extraordinary Fees (Litigation Costs): California Probate Code § 10811
  Litigation is not covered by the standard statutory fee. Attorneys can petition the court for “extraordinary fees” for litigation services (e.g., defending a will contest or recovering stolen property). These fees are billed hourly and must be approved by the judge.