What the law says
Probate Code section 850 is the tool for property that is in the wrong hands. It lets a trustee, an executor, or an interested person petition the probate court to decide who owns property that is claimed to belong to a trust or estate, or property a trust or estate holds that someone else claims. The court decides title and, under section 856, orders the property conveyed to whoever owns it.
Section 859 is the part with teeth. If the court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to an elder, a dependent adult, a trust, or an estate, or has taken it through undue influence in bad faith or through financial elder abuse, that person is liable for twice the value of the property. The court may also award attorney's fees and costs in the elder abuse and undue influence cases.
An 850 petition often rests on other law for the reason the transfer was wrong: a deed signed without capacity, a transfer obtained by undue influence under Welfare and Institutions Code section 15610.70, a gift to a caregiver presumed invalid under Probate Code section 21380, or a trustee's self-dealing under section 16004. What section 850 adds is a single proceeding in probate court that can undo the transfer and bring the property back.
What you can do
Start with the paper trail. For real property, the county recorder's records show every deed and the date it was recorded. For accounts, statements show when money moved and where. For a business, the Secretary of State's filings show changes in ownership. Much of this is public and can be gathered before a lawyer is involved.
Then match the transfers to the timeline of the person's life. A deed recorded the month after a hospital stay, or an account emptied the week a caregiver started, tells the story.
The petition is filed in probate court under section 850. It typically asks the court to declare that the property belongs to the trust or estate, to order it returned, and, where the facts support it, to award double damages and fees under section 859. Where the person who took the property is also the trustee, the petition is paired with a breach of fiduciary duty claim and a request to remove them.
How fast you need to move
Section 850 does not carry its own fixed deadline, but the claims behind it do. A claim against a person who has died generally must be brought within one year of death under Code of Civil Procedure section 366.2, and a claim that the person promised to leave you property runs one year from death under section 366.3. Financial elder abuse claims run four years from discovery. A trust contest over an amendment that moved the property runs 120 days from the trustee's notice.
The practical deadline is faster. Real property can be sold or refinanced, and accounts can be spent. Once the property is gone, the remedy is a judgment against the person who took it, which is worth only what they can pay.
How we handle these cases in Santa Clara County
We trace the property first. Recorder's records, title company files, bank and brokerage statements, and business filings, pulled quickly and organized into a timeline. Legion, the AI litigation platform our founder co-founded, lets us go through years of statements in days and find the transfers that matter.
When the property is at risk of being sold, we act on that first: a notice of pending action against real property, or a request that the court freeze accounts, while the petition proceeds. The petition is filed in Santa Clara County Superior Court in San Jose or in the county where the estate or trust is being administered.
We plead section 859 whenever the facts support it. The prospect of paying double the value of the property, plus fees, changes how the other side thinks about settlement.
Common situations
- The house was put in one child's name before a parent died. The deed, the parent's condition when it was signed, and who arranged it decide whether the transfer stands. If it was the product of undue influence or lack of capacity, an 850 petition can set it aside.
- Accounts were changed to joint accounts or pay-on-death accounts at the end. Beneficiary designations pass outside the will and trust, but they can be undone on the same grounds, and money taken by a caregiver or relative in bad faith supports double damages.
- The trustee moved trust property into their own name. That is self-dealing and an 850 petition brings it back, with a surcharge and removal claim beside it.
- Someone is holding property that was promised to the estate. A promise to leave property, or to hold it for someone else, can be enforced, but the deadline is one year from death.
Am I too late?
How long do I have?
General information, not legal advice. Confirm your dates with a lawyer.
Questions people ask about property disputes (§ 850)
What is a Probate Code section 850 petition?
A request that the probate court decide who owns a piece of property and order it transferred to the right person, trust, or estate. It covers real estate, bank accounts, business interests, and personal property.
The house was put in my brother’s name before Mom died. Can we get it back?
Possibly. If the transfer was the product of undue influence, lack of capacity, or fraud, or was never valid, an 850 petition can undo it. The deed, the timing, and Mom’s condition at the time are where we start.
What are double damages under section 859?
If the court finds property was taken in bad faith, through undue influence, or by financial elder abuse, it can order the taker to pay twice the value of the property, and in some cases attorney’s fees.
Can an 850 petition be combined with other claims?
Yes. It is often filed with a trust contest, an elder abuse claim, or a breach of fiduciary duty petition so the court resolves everything in one proceeding.
This page is general information, not legal advice, and reading it does not make you a client of Rothrock Legal. No attorney-client relationship exists until an engagement letter is signed. Deadlines depend on your facts and change; confirm yours with a lawyer.
