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Probate Administration and Probate Code Section 17206 — Getting Some Relief Before Trial

by | Mar 28, 2023 | Trust & Estate Litigation

One of the most misunderstood provisions in the California Probate Code is contained in California Probate Code Section 17206.  This powerful provision essentially grants the Probate Court the power to issue any necessary or proper order to effectuate the orderly and proper administration of the Trust.

California Probate Code Section 17206 provides:

The court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition, including appointment of a temporary trustee to administer the trust in whole or in part.

[California Probate Code Section 17206].

That seems simple enough, so why am I saying that it is often misunderstood?

Basically, many courts and lawyers alike believe that for any substantial relief to occur in the context of a trust that is in the middle of being litigated, a petition must be brought.  A trust petition is a lengthy process, and hearing for such (which is actually an actual trial) is typically scheduled to occur at least a year after filing.  Pretty much all trust litigation indeed starts with a trust petition brought under California Probate Code Section 17200.  But contrary to what many think, that does not mean that nothing can be done about the many ills that may afflict a trust (misbehaving trustees, lack of information, etc.) in the meantime.  Instead, Probate Code Section 17206, as amplified in the seminal case of Schwartz v. Labow [(2008) 164 Cal. App. 4th 417, 427 (citing Cal. Probate Code Section 17206 and holding that the Probate Court has the power to decide all incidental issues of trust administration)] and its progeny, give the Probate Court broad powers to issue orders before trial in order to ensure that the trust does not come to harm.  A Probate Code Section 17206 Motion is something akin to a Motion for Preliminary Injunction, but is actually far more powerful.  Preliminary Injunctions in most cases can only be used to maintain the status quo and prohibit specific wrongful conduct.  A Probate Code Section 17206 Motion can, and usually does, change the status quo and allows the Court to use its inherent equitable powers to do ensure proper administration of the trust before trial.

Unfortunately, this power is often misunderstood by courts.  Not atypically, there may be a misbehaving trustee who objectively should be suspended and replaced, at least until trial.  After all, the mischief that a really rogue trustee can commit is vast, and the trial date may be far off.  If the evidence for such misbehavior is reasonably conclusive, the Petitioner can bring a motion under Probate Code Section 17206 to ask the Court to suspend the trustee and replace him or her with someone appropriate, such as another person named in succession as trustee, or by a licensed professional fiduciary, a kind of professional trustee.  Unfortunately, many courts seem to not understand that they have the power (and under some circumstances the obligation) to act on such motions.  In a few instances our Firm has brought absolutely appropriate noticed motions under Probate Code 17206, only to have the Court state words to the effect that this necessitates a Petition, not a motion, and so forth.  One Court baldly stated that “…in this County we do everything by Petition when it comes to trusts…”.  (This allowed a flagrantly misbehaving trustee to remain in office and remain in possession of seven figure assets for years before we successfully finally got her removed).   In another case a Court simply converted a Probate Code Section 17206 Motion to Suspend Trustee into a Petition.  Given that there was already a Petition on file for such purpose and that the Motion was brought within that same Petition under Probate Code Section 17206, this was completely unhelpful, to put it mildly.

Not all courts are unwilling to utilize Probate Code Section 17206 as the Legislature intended.  Our Firm has repeatedly had success in utilizing it to curb problems in trust administration.  If you are experiencing problems with a trust, 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.