Probate: Where Attorney Only Delayed Distribution But Did Not Conceal Or Remove Funds, Attorney’s Fees Recovery Under Probate Code Section 859 Was Improper

Only Three Forms Of Specified Misconduct Give Rise To Fee Entitlement, With None Present Here.

             Probate Code section 859 provides that “If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of [estate] property[,] . . . the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs.”

            In Khatirine v. Marquez, Case No. A159348 (1^st Dist., Div. 4 Jan. 26, 2021) (unpublished), an attorney appealed an order compelling him to pay about $104,000 (twice the value of about $52,000 in funds) and $7,504.46 in a section 859 penalty to an estate’s personal representative.  The 1/4 DCA reversed, finding that the representative was only entitled to routine costs as the prevailing party but no section 859 penalty or attorney’s fees.  The reason was that attorney did not conceal or remove property, but only delayed distributing the $52,000 until ordered to do so by the probate court.  Section 859 is not a general “misconduct” statute, but only allows for fee recovery if three specified forms of misconduct occurred—and none of them did under the circumstances of the case.