Litigation
Elder Financial Abuse and California Probate Code 859
Financial elder abuse can be recovered in the probate court, and Probate Code §859 can double the damages and add attorney’s fees when property was taken in bad faith.
California financial elder abuse is the wrongful taking of an elder’s property for a wrongful use, with intent to defraud, or by undue influence (Welf. & Inst. Code §15610.30). In probate, Probate Code §859 requires double damages and attorney’s fees when property of a decedent was taken in bad faith. These claims are often tried with a trust contest or an §850 petition.
Elder financial abuse in probate
- Who is an elder
- A person 65 or older (Welf. & Inst. Code §15610.27)
- Civil definition
- Welf. & Inst. Code §15610.30
- Double damages
- Probate Code §859, on a finding of bad faith
- Fees
- §859 also awards reasonable attorney’s fees and costs
The most expensive trust fights in San Diego are often not about the restatement. They are about the years before death, when someone with a power of attorney, a joint account, or a new deed quietly moved the estate. California treats that as financial elder abuse. In the probate court, Probate Code §859 can double the recovery and shift fees. That combination changes settlement math.
The statutory definition
Welfare & Institutions Code §15610.30 defines financial abuse of an elder as taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder for a wrongful use, with intent to defraud, or by undue influence. An elder is a person 65 years of age or older. A person is deemed to have taken property for a wrongful use when they knew or should have known that their conduct was likely to be harmful.
Undue influence, as discussed in our undue-influence article, is itself a form of elder abuse. So is isolating an elder from the family members who would have noticed the transfers.
Probate Code §859: double damages and fees
Section 859 provides that if a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent, or has taken property by the use of undue influence in bad faith or through the commission of elder abuse, the person shall be liable for twice the value of the property recovered. The court shall also award reasonable attorney’s fees and costs.
Two features make §859 a different animal from an ordinary surcharge:
- The multiplier is mandatory once bad faith is found. It is not a discretionary punitive add-on.
- Fees follow, which is unusual in probate and is often what makes a mid-six-figure fight triable rather than a war of attrition.
Bad faith is the hinge. A child who honestly thought a joint account was a gift will fight the multiplier even if they lose the property. A caregiver who drained accounts after a new power of attorney is the fact pattern §859 was written for.
How these claims are tried in probate
They are usually pleaded alongside a trust contest, a petition to recover property under Probate Code §850 (including Heggstad petitions), and a breach-of-fiduciary-duty count against an agent under a power of attorney. Discovery is bank records, deeds, notary books, and the elder’s medical chart. Adult Protective Services records sometimes exist; they are not a prerequisite to the civil claim.
Tresp Law, APC brings these petitions for families and defends fiduciaries who are accused of them. If property moved in the last years of life and the accounting does not explain it, call (858) 248-2779 or request a consultation. Related: trust and probate litigation and signs of elder abuse.
This article is general information about California law, not legal advice, and reading it does not create an attorney–client relationship. Trust and probate deadlines are strict and many rights are lost by missing one — for guidance on your own situation, contact Tresp Law, APC or call (858) 248-2779.
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Common questions
Frequently asked
What is financial elder abuse in California?
Taking, secreting, appropriating, obtaining, or retaining an elder’s real or personal property for a wrongful use, with intent to defraud, or by undue influence. An elder is 65 or older. The definition is in Welfare & Institutions Code §15610.30.
What does Probate Code §859 add?
If a person is found to have taken property of the decedent in bad faith, the court shall award twice the value of the property recovered, plus reasonable attorney’s fees and costs. It is one of the sharpest fee-shifting tools in the Probate Code.
Is elder abuse only a criminal matter?
No. It is both civil and, in some fact patterns, criminal. The civil claim can be brought in probate as part of a trust or estate dispute, which is usually faster than a separate unlimited civil case.
Does §859 apply only after death?
Section 859 sits in the Probate Code and is used in estate and trust proceedings to recover property taken from the decedent. Related elder-abuse damages and fees are also available under the Welfare & Institutions Code. Counsel will plead the statutes that fit the timeline.
This page is general legal information, not legal advice, and does not create an attorney-client relationship. California trust and probate law is fact-specific and deadlines are unforgiving — please speak with a qualified attorney about your own circumstances.
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