Trustee Removal in California: Legal Process and Grounds for Removal

When a trustee breaches their fiduciary duties, mismanages trust assets, or refuses to fulfill their responsibilities, beneficiaries may need to take legal action to remove them. While trustee removal is a serious step, California law provides clear grounds and procedures for removing trustees who aren't properly serving the trust.

Understanding when removal is appropriate and how the process works is essential for protecting your inheritance.

Legal Authority for Trustee Removal

California Probate Code Section 15642

This statute governs trustee removal and provides several grounds:

A trustee may be removed by the court in the following circumstances:

1. Breach of trust - Trustee violated fiduciary duties
2. Lack of cooperation - Trustee won't work with co-trustees
3. Substantial change of circumstances - Conditions make removal necessary
4. Unfitness, unwillingness, or persistent failure - Trustee cannot or will not administer effectively
5. Best interests - Removal serves trust and beneficiaries' interests

Trust Document Provisions

The trust document may also specify:

• Conditions for removal
• Who has authority to remove (settlor, trust protector, beneficiaries)
• Replacement trustee provisions
• Removal without cause provisions

Always review the trust document first - it may provide easier removal mechanisms than going to court.

Grounds for Removal

Let's examine each ground in detail:

1. Breach of Trust

Examples of breaches that support removal:

Breach Type	Specific Actions
Self-dealing	Trustee buys trust assets for themselves, sells personal property to trust, uses trust funds personally
Theft/embezzlement	Trustee steals trust funds, diverts income to personal accounts, makes unauthorized personal distributions
Favoritism	Trustee favors certain beneficiaries over others, shares information selectively, makes unequal distributions
Failure to account	Trustee refuses to provide accounting, hides transactions, provides false information
Mismanagement	Trustee makes imprudent investments, fails to diversify, ignores trust assets
Lack of communication	Trustee won't respond to beneficiaries, doesn't provide required notices, disappears

What you must prove:

• Specific acts or omissions constituting breach
• Trustee knew or should have known their duty
• Breach caused or risks causing harm to trust

2. Inability or Unwillingness to Administer

Physical or mental incapacity:

• Trustee has dementia or cognitive decline
• Serious illness prevents trustee from performing duties
• Mental health issues interfere with administration
• Substance abuse problems
• Trustee is incarcerated

Unwillingness:

• Trustee simply ignores responsibilities
• Refuses to act despite repeated requests
• Abandons the trust
• No longer willing to serve but won't resign

Persistent failure:

• Continually misses deadlines
• Fails to file tax returns
• Doesn't distribute according to trust terms
• Ignores court orders

3. Lack of Cooperation Among Co-Trustees

When multiple trustees can't work together:

Evidence of lack of cooperation:

• Co-trustees refuse to communicate with each other
• Deadlock on major decisions
• One co-trustee undermines the other
• Personal hostility prevents administration
• Legal disputes between co-trustees

Note: Courts can remove one or all co-trustees depending on who is responsible for the conflict.

4. Substantial Change in Circumstances

Examples:

• Trustee moves far away and can't effectively manage local assets
• Trustee's business creates conflicts of interest
• Trust has grown too large for individual trustee
• Relationship between trustee and beneficiaries has completely deteriorated
• Professional expertise is now needed

5. Hostility Between Trustee and Beneficiaries

When does hostility support removal?

Courts don't remove trustees just because beneficiaries are unhappy. However, removal may be appropriate when:

• Hostility impairs trust administration
• Relationship is so broken that proper administration is impossible
• Trustee's personal feelings interfere with impartial administration
• Litigation is ongoing and preventing progress

Important distinction:

• Mere personality conflicts: Usually insufficient
• Hostility impairing administration: May support removal

The Removal Process

Step 1: Investigate and Document

Before filing a petition:

Gather evidence:

• Trust document and all amendments
• Accountings (if you have them)
• Correspondence with trustee
• Evidence of breaches or misconduct
• Appraisals showing asset values
• Bank statements or financial records
• Tax returns (or lack thereof)
• Communications showing hostility or failure to cooperate

Document timeline:

• Dates of specific breaches
• Chronology of attempts to resolve issues
• When you first discovered problems
• Pattern of misconduct or failure

Step 2: Attempt Resolution

Courts prefer parties to attempt resolution before litigation:

Steps to take first:

1. Send written notice of concerns to trustee
2. Request corrective action
3. Suggest mediation
4. Request voluntary resignation
5. Consider requesting professional advice (attorney, accountant)

Why this matters: Courts look favorably on beneficiaries who tried to resolve issues before seeking removal.

Step 3: Retain an Attorney

Trustee removal petitions are complex. You'll need an experienced trust litigation attorney to:

• Evaluate strength of your grounds for removal
• Gather necessary evidence
• Draft the petition
• Handle procedural requirements
• Represent you at hearings
• Examine witnesses
• Present legal arguments

Don't attempt this yourself. Removal petitions require legal expertise.

Step 4: File Petition for Removal

Your attorney will file a petition with the probate court containing:

Required contents:

• Identification of the trust and trustee
• Your relationship to the trust (beneficiary status)
• Specific grounds for removal under Probate Code §15642
• Factual allegations supporting each ground
• Evidence of harm or risk of harm
• Request for specific relief (removal and appointment of successor)
• Request for attorney's fees and costs

Filing requirements:

• Venue: County where trustee resides or trust is administered
• Filing fee: Approximately $435-$450
• Supporting declarations and exhibits

Step 5: Serve the Trustee

Service requirements:

• Personal service on the trustee
• Notice to all other beneficiaries
• Notice to co-trustees
• Proof of service filed with court

Timeline: Trustee typically has 30 days to respond.

Step 6: Trustee's Response

The trustee will file a response:

Common defenses:

• No breach occurred
• Any breaches were inadvertent and corrected
• Beneficiaries are motivated by improper purposes
• Removal would harm the trust
• Trustee has special qualifications
• No suitable successor is available

Discovery: Both sides may conduct discovery (documents, depositions, interrogatories).

Step 7: Court Hearing

What happens at the hearing:

1. Opening statements - Each side outlines their case
2. Petitioner's evidence - You present evidence of grounds for removal
3. Witness testimony - You and other witnesses testify
4. Cross-examination - Trustee's attorney questions your witnesses
5. Trustee's evidence - Trustee presents defense
6. Your cross-examination - Your attorney questions trustee
7. Closing arguments - Both sides summarize positions
8. Court decision - Judge rules from bench or takes matter under submission

Duration: Hearings can last from a few hours to several days depending on complexity.

Step 8: Court Order

If you prevail, the court will issue an order:

Typical removal order includes:

• Finding that removal grounds exist
• Order removing the trustee
• Order appointing successor trustee
• Instructions regarding turnover of trust assets
• Accounting requirements
• Attorney's fees award (if appropriate)
• Surcharge against removed trustee (if applicable)

Timeline for turnover: Typically 30-60 days for removed trustee to transfer assets and provide accounting.

Who Can File for Removal?

Beneficiaries

Any beneficiary with an interest in the trust can petition for removal:

• Current income beneficiaries
• Remainder beneficiaries
• Contingent beneficiaries
• Beneficiaries with future interests

Co-Trustees

A co-trustee can petition to remove another co-trustee.

Trust Protectors

If the trust designates a trust protector, they typically have authority to remove trustees.

Other Interested Persons

In some cases:

• Creditors of the trust
• Attorneys general (for charitable trusts)

Choosing a Successor Trustee

Who Can Serve?

Individual trustees:

• Must be at least 18 years old
• Mentally competent
• Not disqualified by prior misconduct
• Willing and able to serve

Corporate trustees:

• Banks with trust powers
• Professional fiduciary companies
• Licensed professional fiduciaries

Selection Factors

Courts consider:

Factor	Why It Matters
Trust document provisions	Named successors have priority
Beneficiary preferences	Courts consider but aren't bound by preferences
Impartiality	Can trustee treat all beneficiaries fairly?
Experience	Does trustee have necessary skills?
Willingness	Is proposed successor willing to serve?
Conflicts of interest	Any disqualifying conflicts?

Professional Trustees

Benefits:

• Expertise in trust administration
• Impartiality (no family conflicts)
• Licensed and bonded
• Experience with complex trusts

Drawbacks:

• Higher fees
• Less personal connection
• More formal administration

When appropriate:

• Family members can't cooperate
• Complex assets or tax issues
• Large trust requiring expertise
• History of trustee problems

Costs of Trustee Removal

Attorney's Fees

Typical costs:

• Consultation: $300-$600
• Uncontested removal: $5,000-$15,000
• Contested removal: $15,000-$100,000+
• Complex cases with trial: $50,000-$200,000+

Fee structures:

• Hourly billing (most common for removal petitions)
• Flat fee (for simple cases)
• Contingency (rarely used in removal cases)

Court Costs

• Filing fees: $435-$450
• Service of process: $50-$150
• Court reporter: $500-$1,500 per day
• Expert witnesses: $5,000-$25,000

Who Pays?

If you prevail: The trust often pays your attorney's fees as trustee breached duties.

If trustee prevails: You may pay your own fees, and potentially trustee's fees if petition was frivolous.

Removed trustee: May be surcharged for costs caused by their breach.

Alternatives to Removal

Before seeking removal, consider:

Resignation

Requesting voluntary resignation:

• Less expensive than court proceedings
• Faster resolution
• Preserves some relationships
• Avoids court record of removal

How to encourage resignation:

• Explain fiduciary exposure for continuing
• Offer indemnity for acts before resignation
• Agree not to sue for past breaches
• Suggest face-saving exit

Mediation

Benefits of mediation:

• Neutral third party facilitates resolution
• Can address family dynamics
• Less adversarial than litigation
• Preserves confidentiality

Possible outcomes:

• Trustee agrees to resign
• Trustee takes corrective actions
• Professional co-trustee appointed
• Administration terms modified

Adding a Co-Trustee

Instead of removal, sometimes adding a professional co-trustee resolves issues:

When this works:

• Current trustee lacks expertise but means well
• Family trustee needs professional guidance
• Beneficiaries need monitoring without full removal
• Trustee willing to accept help

Court Supervision

Alternative to removal:

• Court orders ongoing supervision
• Trustee must obtain court approval for major decisions
• Required periodic accountings
• Beneficiary oversight

When appropriate:

• Issues are specific and correctable
• Removal seems too harsh
• No suitable successor available

Special Situations

Settlor as Trustee

If the settlor (trust creator) is still alive and serving as trustee:

• Beneficiaries have very limited removal rights
• Settlor generally can't be removed while competent
• Removal only possible if settlor is incapacitated

Corporate Trustees

Removing banks or trust companies:

• Higher standard - must show serious breaches
• Often have contract provisions limiting removal
• May have arbitration requirements
• Usually more documentation and professionalism (harder to prove breach)

Family Trustees

Special considerations:

• Family dynamics complicate proceedings
• Emotional testimony
• Long-term relationship impact
• May affect family gatherings and relationships

Balancing family vs. fiduciary duty:

• Your inheritance matters
• Family members who breach duties should be accountable
• Protecting trust doesn't make you the "bad guy"

After Removal

Transition Process

Removed trustee must:

1. Provide complete accounting
2. Transfer all trust assets to successor
3. Deliver all trust records and documents
4. Cooperate with successor's questions
5. Pay any surcharge ordered by court

Successor trustee must:

1. Review accounting for accuracy
2. Take possession of all assets
3. Notify beneficiaries of appointment
4. Continue administration
5. Consider claims against removed trustee

Pursuing the Removed Trustee

If the removed trustee committed breaches:

Options:

• Surcharge for losses to trust
• Recovery of improperly taken fees
• Return of misappropriated funds
• Damages for breach of duty
• Criminal prosecution (for theft or fraud)

Conclusion

Removing a trustee is a serious step that requires careful consideration and strong evidence. However, when a trustee breaches their fiduciary duties, fails to administer properly, or cannot continue serving effectively, removal protects the trust and beneficiaries.

Key takeaways:

• Document all problems thoroughly
• Attempt resolution before litigation
• Understand the legal grounds required
• Hire experienced trust litigation counsel
• Be prepared for costs (often recoverable)
• Consider alternatives to removal
• Focus on what's best for the trust

While trustee removal can be contentious and expensive, sometimes it's the only way to protect your inheritance and ensure proper trust administration.

Related Articles

Learn more about trustee problems and remedies:

• Common Trust Administration Mistakes California - Mistakes that justify trustee removal including mismanagement, breach of duty, and conflicts of interest.

• When Trustees Fail to Communicate California - Failure to communicate is a common ground for removal and how to compel trustee accountability.

• Trustee Compensation and Taxes California - Excessive compensation is a frequent removal ground and how reasonable fees are determined.

• Trust Litigation vs Probate Litigation California - Where to file trustee removal petitions and procedural differences from other trust disputes.

• Trust Mediation and Settlement California - Alternatives to removal including mediation, trustee resignation with negotiated release, and co-trustee appointments.

Need Help Removing a Trustee?

If you're dealing with a trustee who is breaching their duties or failing to administer a trust properly, our experienced trust litigation attorneys can help evaluate your case and guide you through the removal process.

Contact us for a consultation to discuss whether trustee removal is appropriate in your situation.

This article is for informational purposes only and does not constitute legal advice. Trustee removal proceedings are complex and highly fact-dependent. Consult with a qualified California trust litigation attorney about your specific circumstances.