The California Litigation Guide to Probate Code 859

California Probate Code § 859 is a tool in every probate litigator’s arsenal which authorizes courts to impose a monetary penalty of “twice the value of the property recovered” against the wrongdoer in certain litigation cases.  Here’s a quick guide.

What is California Probate Code § 859?

California Probate Code § 859 authorizes courts to impose a monetary penalty of “twice the value of the property recovered.”  Surprisingly, this penalty also applies to the value of real property recovered, which can lead to exorbitant penalties reaching upwards of tens of millions of dollars.  Winning such a crushing blow against your litigation opponent may ultimately — in the words of the iconic game Mortal Kombat — “Finish Him.”  

How does California Probate Code §859 apply to a decedent?

California Probate Code § 859 applies to a decedent’s or trustor’s case as a method for the Courts to deter and punish wrongdoing.  In a recent California case, In re Estate of Lonnie Lamont Ashlock (Cal. Ct. App. Mar. 3, 2020) 2020 WL 1041066 (“Estate of Ashlock”), after Lonnie Ashlock (“Mr. Ashlock”) passed away, his son, Gabriel, and girlfriend/business partner, Stacey, became embroiled in a lengthy legal dispute over Mr. Ashlock’s estate.  Specifically, Gabriel claimed Stacey had drafted his father’s will and trust documents, named herself as sole beneficiary, signed the trust documents on Mr. Ashlock’s behalf, and misappropriated 18 parcels of real property owned by Mr. Ashlock’s estate.  Gabriel demanded Stacey return the 18 parcels of real property pursuant to California Probate Code § 850 and pay monetary sanctions in the amount of twice the value of the real property pursuant to California Probate Code § 859.

What is the typical recovery under California Probate Code § 859?

The typical penalty imposed under California Probate Code § 859 is significant because the Legislature intended to deter and punish wrongdoing by hitting the wrongdoer where it hurts—in the pocketbook.  Specifically, in Estate of Ashlock, the appellate court affirmed a $10 million monetary penalty against the decedent’s girlfriend after determining she had misappropriated multiple parcels of real property, collectively valued at approximately $5 million, in bad faith. Notably, the monetary penalty awarded by the Court equated to “twice the value” of the real property, even though the decedent’s estate recovered the real property itself.  

How does California Probate Code § 859 relate to California Probate Code § 850?

A Petition filed under California Probate Code § 850 can be utilized to return property or money that was wrongfully taken from a trust or estate, and a request under section 859 can be used in conjunction to punish the wrongdoer.  This punishment incurred under section 859 is entirely separate from the estate’s right to recover misappropriated property under section 850.  Section 859 allows for recovery of “twice the value of the property recovered” in addition to any other remedies if a court finds a person wrongfully took, concealed, or disposed of property belonging to the estate of a decedent.  As applied in Estate of Ashlock, the appellate court determined that Section 859 required Stacey to return the real property to the decedent’s estate and pay a $10 million monetary penalty which equated to “twice the value” of the real property recovered.

What is a California Probate Code § 859 Petition?

A Petition filed under California Probate Code § 859 is used to impose a punishment on wrongdoers, not to award damages.  In Estate of Ashlock¸ the Court explained that confusion often arises when parties refer to Section 859 as the “double damages” rule.  It makes no difference whether the wrongfully taken property is cash, jewelry, or real property — the same rule applies.  Section 859 is “designed to punish and deter specific misconduct,” and “there is nothing punitive about requiring a thief to return stolen property to its rightful owner.”  

What is the statute of limitations on California Probate Codes §§850 and 859?

The statute of limitations for claims under California Probate Code §§ 850 and 859 are controlled by the law applicable to the underlying claim.  Section 850 is the procedural mechanism petitioners utilize to litigate issues related to title or possession to property, but Courts will look to the underlying claim to determine which statute of limitations is applicable.  For example, if the claim is based on an allegation of fraud, the three-year statute of limitations for fraudulent conveyance claims will apply.   Because the fact-specific circumstances of the claim govern which statute of limitations is applicable, it is imperative to contact legal counsel as soon as you discover the existence of any potential claim.

When should I contact an estate attorney?

You should contact an estate litigation attorney as soon as you learn someone has misappropriated money, personal property, or real estate from a decedent, trust, estate, minor, elder, or other vulnerable person through the use of undue influence or financial elder abuse.  The ruling in Estate of Ashlock shows us that section 859 can be used to severely punish anyone who wrongfully transferred real property or absconded with money or personal property from a trust or estate.  Only an experienced estate attorney can ensure you are utilizing every avenue for recovery.

Can RMO attorneys file a Petition under California Probate Code §§850 and 859 for me?

The estate attorneys at RMO are trust and estate experts. RMO attorneys have an in-depth knowledge of the Probate Code and will not rest until our clients are awarded everything they are entitled to under California law, including, penalties pursuant to Section 859. Contact us today if you have questions about how California Probate Code § 859 affects you.

Want a free consultation?

Call (424) 320-9444 or email [email protected]

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The Guide to Probate Code 850 and Heggstad Petitions
The Guide to Family Trust Embezzlement and Stealing
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Contesting a Trust: How Will My Family React?
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About RMO Lawyers, LLP

RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit

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About the Author

Scott Rahn, Founding Partner

Scott Rahn resolves contests, disputes and litigation related to trusts, estates and conservatorships, creating a welcome peace of mind for clients. He represents heirs, beneficiaries, trustees and executors. He utilizes his experience to develop and implement strategies that swiftly and efficiently address the financial issues, fiduciary duties and emotional complexities underlying trust contests, estates conflicts and probate litigation.

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