Many people who have gone through the passing of a loved one, in the midst of troubled family dynamics, will tell you that one of the most frustrating things about the experience is that of securing the estate assets.
When different family members are claiming one property or another, or when the personal representative is not fully aware of all the assets left by the decedent, they might find themselves dealing with property that is missing, unaccounted for, or simply gone.
Valuables like jewelry or artwork may vanish. Bank accounts are suddenly emptied. Titles to real property are changed, sometimes in the final weeks of the decedent’s life. Then after the decedent is gone, and the heirs and successors are left to take stock, they suddenly discover that the estate is worth far less than expected, leaving them with a challenging road ahead.
Because missing property or assets suddenly transferring ownership are often coupled by individuals with a very firm and determined sense of entitlement.
An attempt to have a civil discussion will lead nowhere, and evidence-backed arguments will likely lead to heated conflicts.
This is where a probate dispute attorney can help.
The Probate Code §850 petition
Make no mistake, this kind of dispute will often only be settled by legal means, where the final decision of a court will be backed by the enforcement power behind a legal decision.
For an estate faced with needing to recover assets, the probate attorney uses legal remedies such as a Probate Code §850 petition to recover and reclaim estate property. This petition allows the personal representative – through the probate attorney – to ask the court to determine title to any contested real or personal property.
Typically, there are two scenarios when a probate dispute attorney might use a §850 petition:
- When the decedent died in possession of property claimed by another party; or
- When the property of the decedent is being held by another person
So the reach of a §850 petition can go both ways – property included in the estate may be claimed by someone else as belonging to them, or somebody is holding property that should be part of the estate.
Once a court takes jurisdiction of a §850 petition, the reach of its authority is broad. Not only does the court have the authority to determine legal title to disputed property, but it can also compel the transfer of the property to its rightful owner.
If estate assets are being wrongfully withheld by third persons, a court order can compel them to return or transfer the assets back to the estate.
A §850 Petition is Litigation, Not Probate Administration
In this specific instance of recovering estate assets, the matter is more appropriately categorized as litigation rather than probate administration. When conflict ensues and an advocate is needed, it is highly recommended that the personal representative seek the services of a probate dispute attorney.
While the rules of probate proceedings may be complex enough on its own, it gets doubly more complex when you mix in litigation. The rules that apply are those of traditional civil proceedings: civil discovery, evidence, and civil rules of procedure.
Each party must be able to collect and present all relevant evidence that bolsters their side. Evidence must be admissible. And the rules of procedure – including notices, service, court timelines, and admissibility of evidence – must be strictly followed.
Each side must build their own case to satisfy the requisite burden of proof to satisfy a judgment in their favor, while at the same time use all legal means to counter the other side’s position.
It is a specialized arena that one navigates without a probate dispute attorney at their own risk.
Double Damages for Bad Faith
One of the things that gives a §850 petition its edge is that it empowers the court, under Probate Code § 859, upon a finding that property has been wrongfully taken or disposed of in bad faith, to order the following:
- The return of the property;
- Damages in the amount of twice the value of the property recovered;
- Reasonable attorney’s fees and costs
This “double damages” provision serves as a massive deterrent against those who might attempt to siphon off assets from a vulnerable person before they pass away, or to continue to exclude the rightful heirs of the decedent by withholding or disposing of the assets and keeping the value for themselves.
The double damages provision also gives the estate significant negotiating power to settle matters with the other party.
If the other party is insistent on their rights to a property, but the estate, through the probate dispute attorney, has managed to compile strong evidence showing otherwise, the other party might agree to return the property rather than being found liable for a higher amount than the property’s value.
Needless to say, the assistance of an experienced probate attorney who is well-versed in the applicable legal principles would be a significant asset to the estate.
Conclusion
If you are a personal representative of an estate and are struggling with consolidating and preserving the estate assets, you might need the assistance of a qualified legal professional.
A probate dispute attorney can help you evaluate your specific situation, develop a legal strategy for the recovery of estate assets, and pursue the appropriate legal remedies.