Who Has the Power to Remove a Trustee?

A trustee is an individual who administers a trust on behalf of the beneficiaries. Trustees are responsible for managing trust assets, including maintaining the property and making sure it is productive – i.e. generates income or profit. However, a trustee’s job can be challenging and downright impossible if they don’t have the skills or expertise needed to perform these tasks competently. If a trustee does not fulfill their duties as required by law, they may need to be suspended or removed from their position. 

According to California Probate Code §15642, a trustee can be removed according to the terms of the trust instrument, by the probate court on its own motion, or if the trustmaker, a co-trustee, or a beneficiary files a petition for removal in the probate court.

California law, Probate Code §15640, also allows a trustee to voluntarily resign from their position in any of the following ways:

  • Following the procedures described in the trust instrument
  • Securing consent from the person who has the power to revoke the trust, if the trust is revocable
  • Securing consent from every adult beneficiary, if the trust is irrevocable
  • Securing a court order 

What this means is the individuals who have the power to remove a trustee may include trust makers, beneficiaries, trustees, probate judges, and anyone else given authority to remove a trustee by the trust instrument. 

How do you get rid of a trustee?

While trusts are generally administered outside of the courtroom, California Probate Code §17200 allows trustees and beneficiaries to petition the probate court regarding issues involving the internal administration of the trust. This includes involuntarily removing a trustee from their position or accepting a trustee’s voluntary resignation.  

Once the 17200 petition is filed, the court will schedule a hearing, and a judge will consider the arguments for or against suspension, initially, and, subsequently, removal. While suspension or removal can be difficult to secure, courts are more apt to suspend a malevolent trustee if the facts support suspension and leave the issue of removal for further discovery, briefing and presentation of evidence at trial. 

Even after a trustee removal petition has been filed and a removal hearing scheduled, the parties can still negotiate a settlement agreement. If they cannot, then the case will proceed and the court will determine whether to suspend or remove the trustee.  If the court suspends or removes the trustee, the judge will confirm or appoint a replacement trustee to take over. 

Can a trustee be removed without consent?

Yes, a trustee can be suspended or removed without consent if they have committed a breach of trust or other misconduct.

California Probate Code §15642 identifies the grounds for successfully removing a trustee in probate court. The trust document may also provide other ways a trustee can be removed through the procedures detailed in the instrument.

One of the most common reasons why a trustee can be removed or suspended by the probate court is known as a “breach of trust.” As defined in California Probate Code §16400, a breach of trust occurs when the trustee violates any duty that they legally owe the trust beneficiaries.

These duties include:

  • Administering the trust according to the terms of the instrument
  • Acting in the best interest of the trust and its beneficiaries
  • Treating all beneficiaries fairly
  • Abstaining from using the trust for their own benefit
  • Keeping trust assets separate from their personal assets
  • Take reasonable steps to enforce and defend legal claims that may impact trust assets

Although breach of trust is a common ground for trustee removal, the probate court can also remove a trustee for any of the following reasons:

  • The trustee has failed to take actions that are necessary to the proper administration of the trust
  • The trustee is substantially incapable of managing the trust’s assets or is otherwise substantially incapable of adequately executing their duties
  • The trustee is substantially incapable of resisting undue influence or fraud
  • The trustee is insolvent or otherwise unqualified to administer the trust
  • The trustee’s compensation is unreasonable under the circumstances
  • The administration of the trust has been undermined by disagreements between co-trustees
  • Other good cause

If the trustee fails to uphold any of their duties, it is possible that they can be removed for breach of trust, depending on the severity of the breach. A probate litigation attorney can review the situation and advise you on the chances that a trustee can be suspended and ultimately removed for their misconduct. Even if the trustee hasn’t breached their duties, they may still be subject to suspension or removal for other reasons, so consulting with an experienced lawyer is the first step to take if you want to remove a trustee.

Have questions? We’re happy to discuss.

Call (424) 320-9444 or email hello@rmolawyers.com

Read More
Can Trustees Be Held Personally Liable?
The Trustee’s Guide to Trust Distributions
The Trustee’s Guide to Avoiding Trustee Removal
The Guide to Breach of Fiduciary Duty and Abuse

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.