It’s an unfortunate reality that not all trustees are trustworthy. Some steal, some are negligent, some prioritize their personal interests over those of the beneficiaries. When this happens, removal and replacement of the trustee is often the only viable solution.
Can you remove a trustee from a trust? Can a trustee be removed without consent? How much does it cost to remove a trustee? How long does it take to remove a trustee? What are the grounds for removing a trustee? What should be included in a trustee removal petition?
Learn the answers to these questions and more from Keystone’s guide on removing a trustee from a trust.
Let’s first dive into who the successor trustee is and why they were appointed in the first place.
TELL US WHAT HAPPENED. WE’LL BE IN TOUCH SOON. Table of Contents Who Is the Successor Trustee? Can a Trustee Be Removed Without Consent? How to Petition the Court to Remove a Trustee FAQs About Removing a Trustee From a TrustAs you might guess, the successor trustee is the person appointed by the trust creator (known as the settlor, grantor, or trustor) to succeed the original trustee (who is usually the settlor) as trustee when they either are unwilling to act as trustee or are unable to act as trustee due to their incapacitation or death.
Unlike executors and administrators of the estate, successor trustees generally can begin their administrative duties without being formally appointed by the probate court. They also are not subject to court supervision in the way executors and administrators are during the probate process. The commonalities between executors/administrators and trustees are their fiduciary duties to beneficiaries, which we go over in the next section.
Most trusts are revocable living trusts — which means they can be revoked or amended by the settlor (as long as they’re mentally competent) during their lifetime. Once the settlor becomes incompetent or dies, revocable trusts with no surviving settlors typically become irrevocable — which means they cannot be revoked or changed by the successor trustee or beneficiaries unless one of the valid conditions for changing a trust are met.
Since both revocable and irrevocable trusts are set in stone once the successor trustee takes over control, the trustee is required to administer the trust exactly as described by the trust instrument.
Trustees are fiduciaries, which means they have a duty to act for the benefit of trust beneficiaries. It also means they are obligated to always prioritize the beneficiaries’ best interests over their own when carrying out trust-related activities.
Some of a trustee’s most notable fiduciary duties include:
Put simply, a breach of fiduciary duty has occurred if the person responsible for acting in your best interests fails to do so. In the context of trusts, it means that the trustee has acted in a way that is contrary to the terms of the trust or adversely affects the beneficiaries’ interests.
Perhaps the trustee is making risky investments using trust funds. Perhaps the trustee has sold one of the trust’s real properties for below fair market value. Perhaps the trustee has misappropriated trust assets. Depending on the specifics of the situation, any of these examples could constitute a breach of fiduciary duty by the trustee.
Many beneficiaries are curious about the legality of a trustee withdrawing money from a trust. Trustees usually require unrestricted access to trust assets to satisfy their trustee responsibilities, which include, among other things, paying debts and administration expenses, preparing trust accountings and making timely trust fund distributions to beneficiaries. But trustees having unrestricted access to trust assets can also backfire, because if they cause harm to the trust, they could be removed or worse.
The severity of the consequences for a breach of fiduciary duty generally depend on how much the trustee’s actions harmed the trust. If the harm caused was significant, the trustee likely will face not only removal but a potential surcharge (which can be steep) as well. If the harm caused was not too serious, the trustee may be able to directly resolve the matter with beneficiaries.
In many cases, trusts may contain millions of dollars’ worth of assets (if not more), so it should come as no surprise that even the most honest of trustees can get tempted to misuse or misappropriate assets. But any improper utilization of trust assets (no matter how minor or temporary) can ultimately result in removal and replacement of the trustee.
If you believe the trustee of a trust has breached their duties, keep reading to learn about what you can do as the beneficiary to enforce your rights and protect your inheritance.
If a trustee has violated their fiduciary duties or poses a threat to the trust in some other way, it may be possible to suspend or remove them without their consent, but their alleged violations will need to be laid out in a trustee removal petition, which you file with the court.
Trustee removal petitions are not summaries; they are detailed accounts of the trustee’s violations. For example, if you are alleging that the trustee stole from the trust, you ultimately will need to prove how much they stole with admissible evidence, as well as the likely timeframe of their theft.
This type of detailed information can be difficult to come by as a beneficiary, particularly if the trustee is taking special care to hide their misdeeds from you. But if you have a lawyer on your team, they can handle the heavy lifting by investigating the matter and penning the trustee removal petition on your behalf.
While beneficiaries are the most common petitioners for removal of trustee, there are others who are entitled to petition for removal of the trustee as well. Learn whether you have standing in the next section.
There are only a handful of people who are permitted to seek removal of a trustee. A good rule of thumb for determining whether you qualify is asking yourself whether your interest in a deceased loved one’s trust could be adversely impacted by the trustee remaining in their role. If the answer is yes, then you likely have standing to file a petition to remove a trustee in California.
That being said, it is not always necessary to file a trustee removal petition in order to have a trustee to be removed. A trustee can be removed in other ways as well.
According to California Probate Code section 15642 (a), a trustee can be removed through the following means:
In the following subsections, we discuss each of these ways of removing a trustee in detail.
