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Can you remove a trustee?

On Behalf of | Mar 3, 2023 | Trust & Estate Litigation

There are different types of trusts and many of them can be used to ensure assets are given to heirs and beneficiaries while minimizing or avoiding estate taxes and probate. To ensure this is done, the trust is placed in the hands of a trustee or co-trustees who should then follow the distribution of assets accordingly. 

Despite being in the hands of a trustee, the assets in a trust belong to the trust, not the trustee. However, some trustees take advantage of their control over a trust and breach their fiduciary duty. That’s their legal duty to be honest and loyal and their responsibility to serve the best interests of a trust’s beneficiary. 

When a trustee fails their fiduciary duty, then interested parties may seek to sever their control over a trust. While this is possible, it may not be simple. The following are several ways a trustee may be removed:

Removal by the grantor

In some trust agreements, there may be a clause that allows the trust’s maker (trustor or grantor) to remove the trustee. It may be a simple removal that doesn’t require any explanation. However, if the trustor made an irrevocable trust, then they may not be able to remove the trustee.

Removal by co-trustee, beneficiary or heir 

As stated above, trustees have a fiduciary duty. If it’s believed that they violated their fiduciary duty, then there may be reasons to remove them from a trust. 

Typically, a co-trustee, beneficiary or heir must prove that a trustee breached their fiduciary duty. One example that would call for the removal of a trustee may be that they violated the guidelines of a trust. They may have also intentionally or negligently mismanaged trust assets or personally gained from trust assets. 

Unless the Trustor (the original maker or makers of the Trust) are still alive, most commonly the only way to remove a rogue or misbehaving Trustee is to bring a trust petition before the Probate Court.  California Probate Code Section 17200 provides for this.  If you have a situation in which this appears to be appropriate, we invite you to contact Buffington Law Firm for a Free Legal Consultation.  All consultations are with an experienced trust litigation attorney and are protected by the attorney-client privilege.

If you believe you need to remove a trustee, then it may be in your best interests to understand your legal rights