Probate Code 850 Petitions in California: How to Recover Assets Taken from an Estate or Trust

When a parent passes away, families often discover that something is missing: a bank account emptied in the final months, a house deeded to one sibling shortly before death, or a brokerage account that was supposed to be in the living trust but never was. In California, the main legal tool for getting that property back is a petition under Probate Code section 850.

This article explains what an 850 petition is, who can file one, what must be shown, and why Probate Code section 859 (the “double damages” statute) can change the dynamics of a dispute. If you are still evaluating whether to challenge the estate plan itself, see our guide on how to contest a will or trust in California.

What Is a Probate Code 850 Petition?

Probate Code sections 850–859 create a streamlined procedure that lets the probate court decide who owns or is entitled to possess a particular asset and order it transferred. Instead of filing a separate civil lawsuit, the dispute is heard in the probate court that already oversees the estate, trust, or conservatorship.

Under Section 850(a), a petition may be filed in three settings:

• Conservatorships and guardianships – Section 850(a)(1), where property of a conservatee or minor is held by someone else (or is claimed by a third party).
• Decedent’s estates – Section 850(a)(2), where the personal representative or another interested person claims that property belongs to the estate, or where a third party claims the decedent held property that belongs to them.
• Trusts – Section 850(a)(3), where the trustee or another interested person claims that property belongs in (or out of) the trust.

The petition must set out the facts on which the petitioner’s claim to title or possession is based. If the court finds in the petitioner’s favor, Section 856 authorizes an order directing the transfer or conveyance of the property.

Common Situations Where an 850 Petition Is Used

Assets Taken Before or After Death

A caregiver, relative, or acquaintance withdraws funds, transfers title, or takes personal property that belonged to the decedent or the trust. An 850 petition asks the court to declare that the property belongs to the estate or trust and order it returned.

Assets That Never Made It into the Trust (“Heggstad” Petitions)

Many people sign a living trust but never retitle a house or account into it. Under Estate of Heggstad (1993) 16 Cal.App.4th 943, a written declaration in the trust document that the settlor holds the property as trustee can be sufficient to make it trust property. A “Heggstad petition” is an 850 petition asking the court to confirm that the asset belongs to the trust, which may avoid a full probate. (For background on probate timelines and costs, see How Long Does Probate Take in California? and How Much Does a Probate Attorney Cost?)

Third Parties Claiming Estate Property

The procedure works in both directions. A person who believes the decedent was holding property that actually belongs to them—for example, under an unrecorded agreement or a joint purchase—may also petition under Section 850.

Trustees or Executors Refusing to Turn Over Property

When a fiduciary is withholding or concealing assets, an 850 petition is often paired with accounting and removal requests. Our articles on trustee breach of fiduciary duty and beneficiary rights when assets are hidden cover those remedies.

Section 859: Twice the Value of the Property

What makes 850 litigation especially significant is Probate Code section 859. If the court finds that a person:

1. in bad faith wrongfully took, concealed, or disposed of property belonging to a conservatee, minor, elder, dependent adult, trust, or decedent’s estate; or
2. took, concealed, or disposed of the property by the use of undue influence in bad faith; or
3. did so through the commission of elder or dependent adult financial abuse, as defined in Welfare and Institutions Code section 15610.30,

that person is liable for twice the value of the property recovered, and the court may, in its discretion, award reasonable attorney’s fees and costs.

California appellate courts have clarified several points:

• In Estate of Ashlock (2020) 45 Cal.App.5th 1066, the court held that the Section 859 penalty is in addition to the return of the property itself under Section 856.
• In Keading v. Keading (2021) 60 Cal.App.5th 1115, the court held that when the taking was accomplished through elder financial abuse, a separate finding of bad faith is not required for the double-value award. In reaching that conclusion, Keading agreed with Hill v. Superior Court (2016) 244 Cal.App.4th 1281 and expressly disagreed with Levin v. Winston-Levin (2019) 39 Cal.App.5th 1025, which had required bad faith. Appellate courts have also differed on how Section 859 damages are calculated (compare Ashlock with Conservatorship of Ribal (2019) 31 Cal.App.5th 519), so the specific facts and the appellate district matter.

Because of this exposure, the possibility of a Section 859 claim can influence how the other side approaches the dispute. Every case is different, however, and no particular result can be promised. If elder financial abuse is involved, see our elder abuse practice page and our article on undue influence trust contests.

The Process: How an 850 Petition Works

1. Investigation and Evidence

Bank statements, deeds, account-opening documents, medical records, and communications are gathered to trace what happened. Formal discovery is available once the petition is pending, as in civil litigation.

2. Filing and Notice

The petition is filed in the superior court where the estate, trust, or conservatorship matter is (or could be) pending. Under Section 851, notice of the hearing and a copy of the petition generally must be served at least 30 days before the hearing, and on a person claiming an interest in the property it must be served in the manner required for a civil summons. Local rules—such as those in Los Angeles Superior Court—may add requirements.

3. Response and Litigation

The respondent may file objections. Contested 850 petitions can proceed through discovery, mediation, and, if unresolved, an evidentiary hearing or trial before the probate judge.

4. Court Order

If the petitioner prevails, the court may order the property transferred under Section 856, and may impose Section 859 liability where its requirements are met.

Deadlines: Do Not Wait

An 850 petition is subject to the statute of limitations that applies to the underlying claim (for example, conversion, fraud, breach of fiduciary duty, or elder abuse). Some of these periods are relatively short, and determining which one applies—and when it began to run—can be complex. Delay can also make evidence harder to obtain. If you suspect assets were taken, it is wise to speak with a probate litigation attorney promptly.

Frequently Asked Questions

Who can file a Probate Code 850 petition?

A personal representative, trustee, conservator, or guardian, or—depending on the subsection—any interested person, such as a beneficiary or heir. A third party claiming property held by the estate or trust may also file.

Do I need an open probate to file an 850 petition?

Not always. Trust-related petitions under Section 850(a)(3) do not require a probate case, and a Heggstad petition is often used specifically to avoid probate for an asset that was meant to be in a trust.

What is the difference between Section 850 and Section 859?

Section 850 is the procedure for determining title and recovering property. Section 859 adds liability for twice the value of the property when the taking involved bad faith, bad-faith undue influence, or elder or dependent adult financial abuse.

Can attorney’s fees be recovered?

Under Section 859, the court may award reasonable attorney’s fees and costs when the statute’s requirements are met. Fee awards are discretionary and not guaranteed.

How long does an 850 case take?

Uncontested petitions may resolve within a few months. Contested cases involving discovery and trial can take a year or longer, depending on the court and the complexity of the facts.

Speak with a California Probate Litigation Attorney

If you believe property was wrongfully taken from a loved one’s estate or trust, or an asset was left out of a trust, Lamash Law Firm APC can review your documents and explain your options. Attorney Maksim Lamash represents beneficiaries, heirs, trustees, and executors in probate and trust litigation throughout California from our Malibu office.

Schedule a consultation to discuss your situation.

Attorney Advertising. This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Prior results do not guarantee a similar outcome. Lamash Law Firm APC, Malibu, California. See our disclaimer.