Probate Code Section 859 Was The Penalty And Fees/Costs Entitlement Statute.
In a very sad set of facts, but ones under which beneficiaries prevailed against a misappropriating trustee, the lower court in Moramarco v. Nowakoski, Case No. E084620 (4th Dist., Div. 2 Mar. 5, 2026) (unpublished), following a State Bar disbarment/restitution order because trustee was an attorney, also awarded a civil penalty of $399,681.88 and fees/costs of $61,702.54 under Probate Code section 859 against the former trustee. That section provides that a misappropriating trustee can be liable for a two-fold civil penalty (based on the value of the property taken) and reasonable attorney’s fees and costs. The appellate court affirmed the penalty and fees/costs awards, finding that appellant did not provide specification as to why certain surcharge work was improper under the fees/costs order.