Signs an Executor or Trustee Is Stealing From an Estate: What Heirs Can Do

Signs an Executor or Trustee Is Stealing From an Estate: What Heirs Can Do

By Greg Aslanian, Senior Partner, Trust Law Partners, LLP

Most heirs do not start out suspecting theft. The worry usually creeps in slowly, when an executor stealing from an estate goes quiet about the money, or a trustee stealing money keeps promising an accounting that never arrives. By the time the pattern is obvious, assets can already be gone.

You do not need to prove everything before you act. California gives beneficiaries real tools to see the records, recover what was taken, and hold a dishonest fiduciary personally responsible. This guide walks through the warning signs and the steps that follow.

Red Flags and Your Recourse

• Common signs an executor or trustee is stealing include missing assets, a refusal to provide an accounting, unexplained withdrawals, self-dealing transactions, and long-delayed distributions.
• In California, beneficiaries can compel a formal accounting from a trustee under Probate Code section 16062 and petition the probate court under section 17200.
• A fiduciary who misuses estate assets can be surcharged, meaning ordered to repay losses, under Probate Code section 16420, and removed under section 15642 for a trustee or section 8502 for an executor.
• A Probate Code section 850 petition can recover stolen or wrongfully held property, and section 859 allows twice the value of that property, plus possible attorney's fees, when the taking was in bad faith or involved elder financial abuse.
• Claims for breach of trust are generally subject to a three-year limitations period under Probate Code section 16460, often tied to when a beneficiary received an accounting or discovered the problem.

What Are the Warning Signs an Executor or Trustee Is Stealing?

The clearest signs an executor or trustee is stealing include missing assets, a refusal to provide an accounting, unexplained withdrawals, self-dealing transactions, and distributions that never come. Any single item can have an innocent explanation, so the pattern matters more than any one event. The signs below are the ones beneficiaries and probate courts tend to watch for.

Missing or Unaccounted-For Assets

Assets that were part of the estate and then simply disappear are one of the strongest warning signs. A bank account that held six figures now shows a fraction of that, a piece of real estate was sold with no record of where the proceeds went, or personal property named in the will is nowhere to be found. A fiduciary should be able to say what each asset was worth and where it is now. When that explanation does not come, the gap itself is the problem worth pursuing a pattern often seen in endangered estates.

A Refusal to Provide an Accounting

A trustee who will not account is often hiding how the money was handled. In California, a trustee generally must account to beneficiaries at least once a year, at termination, and on a change of trustee under Probate Code section 16062. An executor of a probate estate has a parallel duty to account to the court and interested parties. Stonewalling, vague summaries, or repeated delays after a written request are a signal on their own, and they are also grounds for a court petition.

Unexplained Withdrawals and Self-Dealing

Cash leaving the estate for the fiduciary's benefit is a classic marker of theft. Watch for withdrawals with no supporting receipts, transfers into the executor's or trustee's personal accounts, estate funds paying personal bills, or the fiduciary buying estate property for themselves at a bargain price. A trustee who sells the estate's house to their own spouse, or pays themselves undisclosed fees, is engaged in self-dealing, which California law treats as a breach even when the fiduciary insists the price was fair.

Distributions That Never Arrive

When a trust or estate is ready to distribute and the money still does not reach the beneficiaries, that delay can hide a shortfall. A fiduciary who keeps inventing reasons to hold funds, refuses to make a partial distribution that the assets clearly allow, or cannot explain why the timeline keeps slipping may be covering losses they caused. Reasonable administration takes time, but open-ended delay paired with silence is a different signal, and beneficiaries in this position may need to compel distributions through the court.

These red flags rarely appear one at a time. Seeing two or three together is usually the point at which it makes sense to look hard at the records rather than wait for the next unanswered email.

What Can Heirs Do About a Stealing Executor or Trustee?

California gives beneficiaries a clear set of remedies, and they can be combined in a single case. You can force the fiduciary to open the books, recover what was taken, remove them from the role, and in serious cases point law enforcement at the conduct. The options below move from information to recovery to consequences.

Compel a Formal Accounting

The first move is often to make the fiduciary show the money. Beneficiaries can petition the probate court under Probate Code section 17200 to compel a trustee to account and to address how the trust is being run, and a similar petition can compel an executor to file an accounting with the court. An accounting frequently surfaces the exact transactions a fiduciary was hoping to keep quiet, which is why a refusal to provide one is so telling.

Seek a Surcharge to Recover Losses

A surcharge orders the fiduciary to repay what their misconduct cost the estate. Under Probate Code section 16420, a court can compel a trustee to redress a breach by paying money back, and under section 16440 the trustee can be charged for losses caused by the breach and for profits they made from it. The money comes from the fiduciary personally, not from the beneficiaries' shares, so a surcharge restores what the estate lost.

Remove the Executor or Trustee

A fiduciary who steals can be stripped of the role. A trustee may be removed under Probate Code section 15642 for a breach of trust or for being unfit to administer the trust. An executor or other personal representative may be removed under section 8502 for wasting, embezzling, mismanaging, or defrauding the estate. Removal often runs alongside a request for a successor and for the return of assets, so the person doing harm is replaced and made to answer for it.

Recover Stolen Property With an 850 Petition

When specific property has been taken, a petition can order it back with a penalty attached. Under Probate Code section 850, a beneficiary can ask the court to recover property that belongs to the estate or trust but sits in the wrong hands. 

Under section 859, a person who took that property in bad faith, through undue influence, or by financial elder abuse can be held liable for twice its value, and the court may award attorney's fees as well. That double-damages exposure is one of the strongest tools California offers against outright theft.

Refer Criminal Theft to Law Enforcement

Serious theft is not only a civil matter. A fiduciary who fraudulently appropriates property entrusted to them can be charged with embezzlement under Penal Code section 503, and larger thefts can be charged as a felony. 

Beneficiaries can report the conduct to local law enforcement or the district attorney's office, and a criminal case can proceed alongside the civil claims. The civil side still matters most for getting the money back, since criminal restitution does not always make an estate whole.

Used together, these remedies let heirs do more than complain. They can recover the assets, shift the cost onto the wrongdoer, and end that person's control of the estate.

How Do You Prove an Executor or Trustee Stole, and How Long Do You Have?

Proof in these cases is built from records and timing, and the sooner you start, the better positioned you are. Courts respond to documented patterns, not suspicion alone, so organizing what you have before you act tends to strengthen the case. Consider the steps below as you decide whether to move forward.

• Request the accounting and supporting records in writing, since a written demand starts the clock on a fiduciary's duty to respond and creates a record of the refusal if none comes.
• Collect bank and brokerage statements, closing documents from any property sales, receipts, and the trust or will itself, so the money can be traced.
• Write down a timeline of events and save emails and texts, because gaps between what the fiduciary said and what the records show are often where a case is won.
• Note when you first learned something looked wrong, as that date can affect your deadline to file.

Mind the Deadline

Waiting too long can cost a beneficiary the right to sue, even over clear theft. Claims for breach of trust in California are generally governed by a three-year limitations period under Probate Code section 16460, which often runs from the date a beneficiary received an accounting that disclosed the issue or reasonably should have discovered it. 

A trustee who provides an accounting with the proper statutory notice can shorten the window to object even further. Because the timing turns on specific facts, confirming your own deadline early is worth doing before records get harder to obtain.

Strong documentation and an eye on the calendar are what turn a hunch into a claim a court can act on. Gathering these materials before a consultation lets an attorney give you a clearer read on what is realistic.

Executor and Trustee Theft in California: Questions Answered by Our Probate Litigation Attorneys

A few questions often arise once beneficiaries start looking closely at a fiduciary's conduct.

Turning a Bad Feeling Into Answers

A quiet sense that the numbers are wrong is often the first accurate thing a beneficiary notices. You do not have to prove the whole case before you ask questions; you need someone who can pull the records and read them clearly. 

Trust Law Partners represents beneficiaries and heirs across California in disputes with executors and trustees, from forcing an accounting to recovering assets that were taken. We handle many of these matters on a contingency fee basis, an arrangement very few probate litigation firms offer, so you can pursue answers without paying by the hour. 

Call (833) 878-7852 for a free consultation.