Can Trustees Be Held Personally Liable?

Yes, trustees can be held personally liable for losses sustained by the trust if they are found to be in breach of their fiduciary duties. 

Trustees owe trust beneficiaries the highest legal duty possible, which is known as a fiduciary duty. This means that they must prudently manage the trust for the sole benefit of the beneficiaries and always act in the best interests of those beneficiaries. Because trustees are fiduciaries, beneficiaries can sue them for breach of fiduciary duties if they believe the trustee has made an error or otherwise mishandled the trust.

Some common problems that could lead to a trustee being held personally liable include:

  • Neglecting to make required distributions to the beneficiaries.
  • Neglecting to provide an accounting of trust activity.
  • Mismanaging trust property.
  • Making poor investment decisions or failing to invest at all.
  • Paying taxes late or incurring other avoidable fees or penalties.
  • Showing one beneficiary preferential treatment.
  • Self-dealing or avoiding conflicts of interest.
  • Stealing or embezzling trust property.

As trustee, you should make sure you keep accurate records that thoroughly detail the hard work you’ve done on behalf of the trust. It’s also best practice to keep a record of the time you spend on the administration of the trust, and be sure to strictly comply with trust provisions, or seek court instruction in a petition for instructions if a provision is unclear or cannot be done. 

Can a trustee go to jail for stealing from a trust?

Yes, a trustee can go to jail for stealing from a trust, if they are convicted of a criminal offense. 

In California, embezzling trust assets worth $950 or less is a misdemeanor crime that can be punished with up to a 6-month sentence in county jail. Stealing more than $950 from the trust can be charged as felony embezzlement, which can result in a trustee spending up to 3 years in jail. In particularly serious cases, trustees can also face federal criminal charges. 

However, most issues of trustee theft are dealt with civilly in the probate court instead of the criminal court. Police officers and prosecutors often don’t have the time or resources to pursue criminal charges for what often is considered a family matter, so when a beneficiary claims that a trustee is stealing from a trust, the issue is usually handled in the probate court by a probate litigation attorney. 

It’s important to keep in mind that, although a probate judge can remove the trustee and require them to pay damages, court costs, and attorney fees, they cannot send a trustee to jail even if they find that the trustee stole from the trust. A trustee can only be jailed if they are convicted of a criminal theft offense in criminal court.

What happens when a trustee does not follow the trust?

If a trustee does not follow the trust, some trusts allow beneficiaries, or a majority of them, to remove the trustee without court intervention.  If the trust does not allow for trustee replacement, and a trustee fails to manage the trust prudently, then a settlor, co-trustee, or beneficiary of the trust can petition the probate court to have the trustee suspended or removed.  The court also has the authority to act on its own motion to suspend or remove a trustee even without the request of an affected person. 

When a petition for the removal of a trustee is filed, the probate court will hold a hearing to assess the reasons the petitioner believes the trustee should be removed and the trustee’s arguments in defense of their actions. If the court decides that the trustee should be removed, it either will confirm the successor trustee as dictated by the trust instrument or, in many cases, appoint a professional fiduciary as replacement trustee to take over the management of the trust. The court can also order a trustee to reimburse any damages caused by their actions, as well as the petitioner’s court costs and attorney fees, and this is called a “surcharge.”

When should I contact a trust litigation attorney?

The best way to avoid personal liability as a trustee is to contact a trust attorney as soon as you assume your trusteeship. A knowledgeable trust administration lawyer can help you understand and comply with your legal duties, as well as the laws that apply to trusts and trustees. If you’ve recently been appointed as a trustee, you should consult with an attorney knowledgeable about trusts as soon as possible. 

Even though partnering with a trust lawyer from the start can help you avoid a lawsuit in the first place, if you’re being sued or accused of misconduct, you should contact a trust litigation attorney immediately. If criminal charges are being pursued, you should also retain a criminal defense attorney to assist with the criminal matter. 

 

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The Trustee’s Guide to Avoiding Trustee Removal

The Guide to Trustee Succession and Resignation

About RMO, LLP

RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.