The penalty for stealing from an estate can vary based on the circumstances and severity of the alleged theft. It’s important to note that in some cases, no “penalty” may be imposed if the matter is resolved outside of court, which is often the case.
For instance, an executor who is stealing from an estate may agree to step down from their position as part of a settlement, without a court-ordered removal — which is a common penalty for stealing from an estate.
Another important factor in determining the penalty for stealing from an estate is the nature of the alleged theft. Theft of estate assets committed in bad faith typically leads to more severe penalties than theft that was accidental or unintentional.
While the penalty for stealing from an estate can be significant, it’s essential to understand that estate theft must first be proven in order for punishment to be considered. This is often a high bar to reach, as estate theft generally requires a preponderance of evidence to prove — meaning the evidence must show that the theft more likely than not occurred.
Suppose a decedent had kept jewelry in their safe, which the executor noticed was missing upon accessing the safe. The executor believes the decedent’s caregiver, who previously had access to the safe, stole the jewelry; however, there is no evidence to suggest the caregiver committed the theft, only vague suspicions. In such an instance, even though estate theft may very well have occurred, it may be difficult to seek a penalty.
Now, consider a different example. Suppose that an executor, after being appointed, accesses a decedent’s bank account. However, instead of transferring the funds from the account to the designated estate account, he transfers them into his own bank account. The decedent’s surviving spouse, who is aware of the separate account, notices its absence and immediately files a petition against the executor. In this case, the court likely will agree with the penalty for stealing from an estate sought by the spouse and remove the executor, holding them personally liable for the stolen funds.
As demonstrated by these examples, even though a legal penalty for stealing from an estate is not always issued by the court, the person responsible generally will be held accountable — at the very least, for returning the stolen property.
If you suspect someone is actively stealing from an estate or did so in the past, consulting with a probate attorney is crucial. While estate theft can often be resolved if detected early, it becomes more challenging as time progresses.
Similarly, if you’ve been accused of estate theft, seeking legal representation is essential. Early intervention can potentially save you money, as your attorney may be able to negotiate a settlement.
Common Penalties for Estate Theft
The penalty for stealing from an estate often depends on the accused party’s role in the administration of the estate. For instance, an executor stealing from an estate may face court-ordered removal or a surcharge, while a beneficiary engaging in estate theft may risk disinheritance.
It’s important to understand that a legal penalty for stealing from an estate is typically only imposed if the matter is resolved through the court — and many estate theft cases settle outside of court. For example, if an executor siphoned funds from a deceased person’s bank account, they might agree to a settlement requiring them to step down, return the funds and reimburse the estate for any additional losses it suffered due to their actions. While this would not qualify as a legal penalty, it would nevertheless punish the executor.
If you are uncertain about the penalties to seek for estate theft, a probate attorney can help provide guidance.
What Is the Penalty for an Administrator/Executor Stealing From an Estate?
When an executor or administrator is stealing from an estate, any penalties they face are generally aimed at stopping further harm to the estate and reimbursing the estate for losses already incurred.
To clarify, an administrator is typically appointed when someone dies without a will or when someone who is not named in the decedent’s will is appointed as personal representative. An executor, on the other hand, is typically named in a will and formally appointed by the probate court. Both roles are considered fiduciary in nature — meaning the administrator/executor is legally obligated to act in the best interests of the estate and its beneficiaries.
When an executor or administrator commits estate theft, they breach these fiduciary duties, causing harm to the beneficiaries. This type of misconduct can result in serious legal repercussions.
Suppose an executor is living rent-free in a rental property owned by the estate. Even if the executor claims it’s a temporary arrangement, it may amount to estate theft. The property could have been generating income for the estate; however, the executor’s misuse of estate property robbed beneficiaries of this additional inheritance. This kind of behavior may not qualify as outright estate theft, but it still constitutes a misuse of estate assets for personal gain.
Asset Recovery
The most common penalty for estate theft by an administrator or executor is a court order requiring the personal representative to return the stolen assets to the estate. This remedy is intended to restore the estate to its original condition before the theft occurred. However, if the assets have already been sold, spent or otherwise depleted, recovery may not be possible. In such cases, the court may impose alternative legal penalties, such as monetary judgments or removal.
Keep in mind that resolution doesn’t always require a probate court proceeding. If the case is settled outside of court, the accused party may still be required to return the stolen property as part of the settlement terms. Recovery of stolen assets can also be pursued alongside other penalties, including damages, surcharges and removal of the personal representative.
Say the executor of an estate, the decedent’s daughter, gains access to the decedent’s bank lockbox. Inside are valuable items, including jewelry and other personal property, which she keeps for herself without including them in the estate inventory. However, her siblings were aware of the lockbox and quickly noticed the irregularities.
In this scenario, the siblings could file a claim against their sister for executor misconduct, seeking recovery of the stolen assets. If the sister voluntarily returns the missing items, her siblings may choose not to pursue further action — especially if the goal is simply to ensure everyone receives their rightful inheritance.
However, if there are concerns about further mismanagement or additional acts of theft, the siblings may wish to seek harsher penalties, such as removal of the executor from her role.
Damages
When a personal representative’s theft results in financial harm to an estate, damages can be sought to restore the estate to its original condition. Damages not only compensate for losses but also may serve as a sort of punitive deterrent to prevent future misconduct.
If an administrator or executor’s estate theft constitutes fraud or was committed willfully or in bad faith, California Probate Code section 859 allows for double damages as a penalty. In particularly egregious cases, treble damages (three times the value of the damages) may also be available.
Say an executor siphoned substantial funds from an estate account. In such an instance, the court may order the executor to return the stolen funds, pay damages for any interest or gains the estate lost, and potentially double damages due to the willful nature of the theft.
Even if the parties choose to settle out of court, the outcome may be similar. Instead of a court-issued judgment, the executor may agree to terms in a settlement that require them to return the stolen assets and compensate the estate for financial losses, including damages.
Suspension/Removal
If an administrator or executor has stolen from the estate — or there’s serious concern about their ability to carry out their duties honestly and effectively — suspension or removal can be sought. Suspension may be requested on an emergency, short-term basis, while removal is a more permanent measure. Suspension or removal can be pursued in conjunction with other penalties, such as asset recovery, damages and surcharges.
While suspending or removing a personal representative can slow the estate administration process, it may be necessary to protect the estate. For instance, if an act of estate theft was the result of a simple mistake — such as unintentionally failing to account for certain estate assets — harsh penalties like removal may not be warranted. But if the estate is at risk of further harm, acting determinedly to suspend or remove the personal representative may be the safest bet.
Consider an intestate estate that includes several real properties the administrator plans to sell. To prepare them for the open market, the administrator hires third-party professionals — such as house cleaners, landscapers, handymen and real estate agents — but inflates the cost of their services and pockets the difference. In this case, suspension may be appropriate while financial records like invoices and receipts are inspected to prevent additional misconduct. If wrongdoing is confirmed, permanent removal may follow, along with other penalties.
It’s not uncommon for administrators and executors who have been accused of stealing from an estate to voluntarily step down from their role — sometimes, in exchange for a payout from the estate — as part of a settlement. This, however, is not the same as court-ordered removal.
Surcharge
If an administrator or executor commits estate theft, a surcharge may be imposed as a penalty. A surcharge holds the fiduciary personally liable for any financial losses their misconduct caused the estate. Unlike damages — which may be punitive and are intended to deter future wrongdoing — a surcharge is compensatory and focused on making the estate whole. Surcharges can also be pursued alongside other remedies, such as asset recovery, removal and damages.
Say an estate contains a bank account holding $250,000. Instead of transferring all the funds to an estate account, the executor transfers a portion of the funds — $50,000 to be exact — into their personal account, using it to pay off their own credit card debt. Noticing discrepancies between the estate inventory and subsequent accountings, beneficiaries petition the court to have the funds returned, the executor removed and a surcharge imposed. If the court agrees with the beneficiaries’ claim that the executor willfully stole $50,000 from the estate, it may impose a $50,000 surcharge — requiring the executor to personally reimburse the estate for the loss.
While an administrator or executor may agree to repay the estate for losses caused by their theft as part of a settlement, this is not equivalent to a court-imposed surcharge.
Opposing Party’s Legal Costs
If an estate theft case proceeds to trial and is resolved in favor of the opposing party, the personal representative may be ordered to pay the opposing party’s legal costs as part of their penalty for stealing from the estate. In some cases, depending on the circumstances, these costs may instead be paid from the estate.
While awards of legal costs are not guaranteed, the possibility of being liable for them is a strong incentive for accused administrators or executors to consider mediation. In a settlement, the opposing party may still request legal fees, but the accused is under no obligation to agree. Often, a settlement may only require the fiduciary to repay the estate and resign.
Notably, if a beneficiary brings a frivolous or baseless claim of estate theft, the court may award legal costs to the personal representative instead — but this applies only if the case is resolved through the court rather than mediation.
What Is the Penalty for a Beneficiary Stealing From an Estate?
When a beneficiary steals from an estate, any penalties they face are generally aimed at reversing the harm caused by their misconduct — and, in some cases, punishing them as well.
To clarify, beneficiaries are individuals or entities named in a decedent’s will who are entitled to receive a portion of the estate. While beneficiaries do not owe fiduciary duties like executors or administrators do, they still are prohibited from committing theft from an estate before inventory or after. Importantly, beneficiaries are only entitled to the assets left to them in the will, and even then, they must wait until the personal representative formally distributes those assets at the close of the probate process.
If a beneficiary wrongfully takes possession of estate property or conceals estate property from the personal representative, their actions could harm the interests of the other beneficiaries and interrupt the administration of the estate. Depending on the nature and severity of the misconduct, the consequences can be significant.
Suppose a beneficiary breaks into a decedent’s home shortly after their death and takes valuable items — such as jewelry and family heirlooms — claiming they had been promised to them. Even if the decedent verbally expressed an intent to gift these items to the beneficiary, they legally belong to the estate until they are formally distributed according to the terms of the decedent’s will. If, for instance, the will states that these items should be divided among all of the decedent’s children, the beneficiary’s actions could unfairly deprive the other beneficiaries of their rightful inheritance. In such a case, legal action may be brought to recover the assets and impose additional penalties on the beneficiary.
Invalidation of Will
When it comes to beneficiaries, estate theft doesn’t always involve physically taking funds or property from an estate. It can also involve using unlawful tactics — such as undue influence or fraud — to secure a greater inheritance at the expense of the other beneficiaries. In such cases, contesting the will is typically the most appropriate legal remedy. While a successful will contest doesn’t necessarily result in legal penalties, it can lead to the invalidation of the will and the reinstatement of its prior version — potentially reducing or eliminating the at-fault beneficiary’s inheritance.
Say a beneficiary moves in with the decedent during their final days under the pretense of providing care, but with the hidden intention of manipulating the decedent to alter their will in their favor. While the beneficiary may not have directly stolen from the estate, their actions could effectively deprive the other beneficiaries of the inheritance the decedent originally intended for them to receive. If the court finds that undue influence was involved, the will may be invalidated and an earlier version may be admitted to probate instead.
In some cases, a will contest petition can go further and seek legal penalties, such as damages or even the disinheritance of the offending beneficiary. If granted, this outcome may act as a penalty for the harm caused.
If you suspect a beneficiary used unlawful tactics to secure themselves a larger share of the estate than they were entitled to, contesting the will may be the most effective way to hold them accountable. However, it’s important to understand that suspicion alone isn’t enough — the evidence needed to contest a will and be successful is generally substantial. If you’re unsure what evidence you may need to prove your claim — or whether you have a valid claim to begin with — consulting with a skilled will contest attorney is recommended.
Asset Recovery
The most straightforward penalty for a beneficiary who steals funds or property from an estate — whether the theft occurs before or after the inventory — is asset recovery, which is generally aimed at restoring the estate to its original state. If the stolen assets have been sold, spent or are otherwise unrecoverable, additional penalties may be imposed.
Asset recovery is typically initiated through a court petition — though court intervention isn’t always necessary. If the beneficiary admits to the wrongdoing and agrees to return the stolen property promptly, the matter may be resolved informally without the need for litigation. However, if the beneficiary refuses to cooperate — even after a formal claim is filed — they may face court-ordered asset recovery and other consequences, depending on the severity of the misconduct and the harm it caused.
Damages
As with damages imposed on administrators and executors, damages imposed against a beneficiary are generally intended to compensate the estate for the losses it suffered as a result of the beneficiary’s misconduct — and, in some cases, to penalize the beneficiary as well.
Say a beneficiary unknowingly commits estate theft — such as by entering the decedent’s home after their death and taking money from their wallet and safe, unaware that doing so was improper. When alerted to the mistake, they promptly return the money to the estate. In this scenario, their actions may not be considered willful, and they may only be required to reimburse the estate without incurring further penalties.
However, if a beneficiary deliberately exploits the decedent — say, by posing as a caregiver with the hidden intent of stealing valuable items from the decedent’s home while they are still alive — Probate Code section 859 may apply. Under this statute, the beneficiary could be liable for double damages as a result of their bad-faith actions, particularly if their actions rise to the level of elder financial abuse. In extreme cases, treble damages may even be imposed.
This example also highlights that estate theft doesn’t have to occur after a decedent’s death. Any verifiable misconduct that is committed before or after a decedent’s death and results in financial damage to an estate could result in damages being imposed on the offending beneficiary.
Disinheritance
The most severe penalty a beneficiary can face is disinheritance — though it is typically reserved for only the most extreme forms of misconduct.
Under Probate Code section 259, a person may be deemed to have predeceased the decedent — effectively disinheriting them — if there is clear and convincing evidence that they physically abused, financially abused or neglected a decedent who was an elder or dependent adult, or acted in bad faith, or through reckless, oppressive, fraudulent or malicious conduct. Keep in mind, however, that the abusive person is only disinherited from the proceeds of an action to recover the stolen property, In other words, they may only be partially disinherited.
Say an executor discovers that a beneficiary stole valuable collectibles from the decedent’s home, prompting them to file an 850 petition on behalf of the decedent’s estate to recover the property and damages. If the executor’s petition is granted, the beneficiary may become ineligible to inherit any of those collectibles or any damages or costs that were awarded to the estate as a result of the beneficiary’s actions.
A beneficiary may also face disinheritance by triggering a no-contest clause after unsuccessfully contesting a will — particularly if the contest was frivolous or unsupported by evidence. That said, probate courts are often hesitant to enforce no-contest clauses, so disinheritance in this context is not automatic — though the risk remains and should be taken seriously.
If you are at risk of disinheritance, it’s essential to consult a skilled probate attorney to protect your rights and explore your legal options.
Award of Opposing Party’s Legal Costs
If an executor or another interested party sues a beneficiary for estate theft and prevails, the court may order the beneficiary to pay the opposing party’s legal costs as part of their penalty for stealing from the estate. These awards can be substantial, but they’re typically only available if the case is resolved through the court.
Although awards of legal costs are never guaranteed, the possibility of being held financially responsible is a strong incentive for a beneficiary facing credible allegations of estate theft to consider mediation. In a settlement, the opposing party may still request legal fees, but the beneficiary is not obligated to agree to such terms.
In general, beneficiaries should not expect to recover their legal costs, as courts award them selectively. However, if a personal representative brings a valid claim against a beneficiary, they are often permitted to pay legal costs using estate funds.
What Is the Penalty for Family Stealing From an Estate?
The penalty for a family member stealing from an estate often depends on their relationship to the decedent.
If they are a direct heir — meaning they would inherit by intestate succession if there were no valid will — they may face the same penalties as a beneficiary who commits estate theft. These can include asset recovery, damages, disinheritance and even payment of the opposing party’s legal costs.
If they are a more distant relative who does not qualify as a direct heir (i.e., they are a third party), penalties typically focus on restoring what was taken. They may include asset recovery, damages and awards of the opposing party’s legal costs.
What to Do if You Suspect—or Have Been Accused—of Estate Theft
Estate theft is a serious allegation that can have lasting consequences. If you suspect someone has committed it, swift and strategic legal action may be necessary to recover what was taken and protect both the estate and its beneficiaries’ inheritance.
Similarly, if you’ve been accused of estate theft — even if the claims seem unfounded — it’s essential to respond thoughtfully. Allegations like these can jeopardize your role in the estate or your inheritance if not handled properly and effectively.
Whether you’re pursuing a claim or defending against one, taking the right legal steps is critical in safeguarding the interests of the estate as well as your own.
Thoroughly Inspect Estate Documents
While reviewing the decedent’s will is essential, it’s equally important to carefully examine all estate-related documents you receive throughout the administration process. These may include the estate inventory, accountings, invoices and receipts. Ideally, these documents should be reviewed with the help of a skilled professional, such as a probate attorney or CPA.
These records can provide valuable insight into the estate’s assets, their value and financial transactions made using them during administration. A thorough review may uncover red flags. For example, you might notice that certain assets mentioned in the will are missing from the estate inventory. While this doesn’t automatically mean they were stolen, it may warrant further investigation into their whereabouts.
Discuss Concerns with Other Interested Parties (If Appropriate)
If you suspect estate theft, it may be beneficial to discuss your concerns with the other interested parties. Bringing them into the conversation could not only ease the financial burden of legal action but also help to build a stronger and more unified case.
For instance, if financial documents suggest the executor is misappropriating estate funds, presenting a united front with the other beneficiaries could help demonstrate to the court that the claim is serious and not based on personal grievances — potentially increasing the likelihood of the court imposing meaningful penalties for stealing from the estate.
However, personal representatives should exercise caution when involving others in a lawsuit against a beneficiary or heir. As fiduciaries, they are expected to act impartially and can generally use estate funds to pursue valid claims. If a personal representative is considering bringing others into a legal matter, they should first consult with a probate attorney to ensure doing so would not violate their fiduciary duties.
Gather Evidence
While you don’t need overwhelming evidence to initiate an estate theft claim, you should have at least some evidence to show estate theft may have occurred — otherwise, you likely wouldn’t be considering legal action.
Start collecting whatever supporting documentation you have: financial records, communication logs, emails, text messages or any other relevant documents. This initial evidence will help your attorney assess the viability of your case and determine the best course of action.
Consult a Probate Attorney
At this point, it’s essential to consult with an experienced probate attorney — ideally one with a strong background in litigation, since estate theft claims often require court intervention.
Bring any evidence you’ve gathered and be prepared to discuss your goals and budget. A seasoned attorney can evaluate the strength of your case and, if it’s viable, develop a tailored legal strategy that aligns with your desired outcomes.
Consider Mediation
As discussed throughout this article, mediation — a negotiation between the parties led by a neutral third party — can be a cost-effective way to resolve estate theft claims. While participation in mediation is voluntary, any settlement reached and agreed upon by all parties is legally binding, even without court involvement.
Mediation often leads to more favorable outcomes for the accused party, as it typically involves mutual compromise. If the case proceeds to trial and the court rules that estate theft occurred, the penalties imposed can be significantly more severe.
Keep in mind that mediation remains an option at any point in the litigation process, even after a trial has commenced. It’s highly recommended to attend mediation with your attorney, who can represent your interests and guide negotiations on your behalf.
Penalty for Stealing From an Estate FAQs
If you still have questions around the penalty for stealing from an estate in California, check out the frequently asked questions below. Don’t hesitate to reach out to our firm directly if you’re unable to find the answers you need.
Can an executor be charged criminally?
Yes, an executor can be charged criminally in California if they commit intentional and egregious misconduct, such as embezzling estate assets, committing fraud, or physically or financially abusing an elder or dependent adult.
Under California Penal Code section 487, theft involving property valued at over $950 is considered grand theft and may be charged as a felony. However, most disputes involving executors are handled through civil litigation — even when the value of the alleged theft exceeds this threshold. Criminal charges are typically pursued only if law enforcement or the district attorney's office decides to act, which is rare due to limited resources.
Can a probate judge put you in jail?
Yes, a probate judge can order jail time, but this authority is used sparingly and only under limited circumstances. The most common basis for incarceration is contempt of court. For example, if you willfully refuse to comply with a court order, the judge may impose fines or, in extreme cases, jail time to enforce compliance.
What happens if an executor spends all the money?
If an executor improperly spends all of an estate’s funds, they may be held personally liable and be ordered to reimburse the estate. In more serious cases, the court may remove the executor and impose harsher penalties, such as double or treble damages and surcharges.
That said, an executor “spending all the money” doesn’t necessarily indicate wrongdoing. If an estate wasn’t sizable to begin with, the executor may have had no choice but to spend all the estate’s money to repay the decedent’s creditors — whose valid claims must be satisfied before distributions can be made. Likewise, probate fees could have depleted the estate of its money. Neither of these scenarios would suggest estate theft by the executor.
If you suspect an executor may have wrongfully spent all an estate’s money, it’s crucial you reach out to a probate attorney before it becomes too late or challenging to recover the funds. A probate attorney can also help you determine whether an executor’s use of estate funds was justified.
Is estate embezzlement the same as estate theft?
Estate embezzlement and estate theft are similar but not identical. Embezzlement refers to theft of estate assets by an individual in a position of trust — such as an executor — whereas estate theft can be committed by anyone, including beneficiaries or third parties. Both estate theft and embezzlement are subject to legal penalties.
Still have questions about the penalty for stealing from an estate?
Whether you suspect estate theft or have been accused of it, securing guidance from an experienced probate attorney is essential.
Estate theft is a serious matter, and if not addressed promptly and strategically, the consequences can be significant. Our attorneys regularly handle estate theft cases and know what it takes to secure favorable outcomes for our clients.
You can rely on us to protect your interests and guide you through the process. Call us today to discover how we can help.
