Son Wrongfully Obtained Decedent’s Personal Property And Sought A Greek House Which Was Found To Belong To The Overall Estate.
The Probate Code has many fee-shifting provisions, most of which are discretionary. They provide great leeway to the probate court in fashioning an award, given that the probate court is one of equity to safeguard estates and trusts.
Appellant in Sehremelis v. Sehremelis, Case Nos. G059941 et al. (4th Dist., Div. 3 Dec. 2, 2022) (unpublished) learned the sting of one of the fee-shifting provisions. He was found to have in bad faith wrongfully taken some personal property of his deceased father under the Probate Code section 859 when the co-executors/successor co-trustee’s of father’s will/trust petitioned to get damages for these actions, with section 859 having a discretionary fee-shifting provision for the benefit of the prevailing party. The probate court awarded $170,095 in section 859 fees to co-executors and against decedent’s son. Also, they petitioned to offset son’s inheritance share for his interest in a Greek house, a petition which was denied but with the fees incurred to bring it surcharged against the trust.
Son appealed both fee rulings, but they were affirmed by the 4/3 DCA. Section 859 certainly allowed for imposition of fees, and Greek litigation resulting in a judicial escrow for the personal property did not alter the result. With respect to the Greek house petition, trustees were attempting to offset son’s interest in the house against his inheritance, which would have benefitted the trust. Although unsuccessful, those fees can be charged against the trust in the lower court’s discretion under Probate Code section 15684, subdivision (b).
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