Replacing a trustee is, effectively, a transition of power, and can be daunting. In California, whether the trustee willfully resigns or you have to pursue California trust litigation, it is important to understand what to expect throughout.
Failure to prepare properly can result in a long, stressful, and expensive process that yields no results. And if you are in a situation involving a trustee’s breach of fiduciary duty in California, failure to remove the trustee compromises the trust and your inheritance.
At Gokal Law Group, we have dedicated years to helping beneficiaries remove unfit and malicious trustees and replace them with someone who will operate with integrity. Read on to learn how to replace a trustee.
When Should I Consider Removing and Replacing a Trustee?
Several situations can cause one to remove and replace a trustee. Still, regardless of your situation, you will need to brace yourself for California trust litigation and work with a premier attorney to navigate probate court.
Being unhappy or upset with the trustee is not enough to remove and replace a trustee. To remove and replace a trustee, you must provide a legal basis for removal. Common reasons to consider replacing a trustee include when the trustee:
- Passes away
- Fails to remain impartial
- Fails to adhere to trust terms
- Is subject to undue influence
- Neglects or mismanages trust assets
- Commits self-dealing
- Commits an abuse of discretion
- Commits fraud
- Fails to act, is unresponsive, or uncooperative
- Misappropriates of trust friends
- Is hostile towards beneficiaries
- Charges excessive fees and expenses
- Breaches their fiduciary duty (also called a breach of trust)
- Is unfit or insolvent
- Demonstrates a conflict of interest
Related Article: Can a Trustee be Removed and Replaced?
Why Should I Consider Removing and Replacing a Trustee?
A breach of trustee duties is a severe offense that can have repercussions that span generations. As a result, failure to act jeopardizes the trust, your inheritance, and the legacy of the person who left it behind.
Also, per California trust law, there is a statute of limitations on when you can remove them, and if you miss this window, you will be barred from pursuing litigation.
How Can I Remove and Replace a Trustee?
If you think that removing and replacing a trustee is your only option, then working with a trust lawyer in Orange County is essential because the judge will want to see proper evidence that is admissible in court, which can come in the form of documents or testimony.
Gathering requires depositions, expert witnesses, interrogatories, witness interviews, subpoenaed documents, and evidence presented following the Rules of Evidence. An expert trust dispute lawyer will help you navigate this complicated process.
This process requires filing a trustee removal petition to remove the trustee. This trustee removal petition can only be filed by interested parties or parties detailed in the trust document, such as a beneficiary. A lawyer will also file a petition for a Formal Account and an order allowing discovery to obtain evidence.
If your trustee does not change their behavior and remedy the damage they caused, there will be a hearing. If your evidence provides grounds for removal, then the judge can remove and replace them and even surcharge the trustee for damages.
Also, trustees can sometimes step down willingly, which eases this process. Regardless, we advise always consulting with a California trust litigation lawyer before you pursue trustee removal and, ultimately, replacement as this can be a long and expensive process.
“After removing the trustee, replacing them is a separate process. Generally, only the person authorized by the trust to appoint a replacement can choose who will be replacing a trustee. In these situations, it is important to communicate honestly with all interested parties and the person who has this authority to ensure the replacement is fit for the job.” – Ronald V. Larson, a partner and Orange County trust lawyer at Gokal Law Group with nearly 30 years of litigation experience
Premier Trust Litigation Lawyers in Orange County
If replacing a trustee is necessary, the margin for error is slim. To pursue California trust litigation and succeed, you must navigate strict rules, and failure to do so can destroy your case. Working with a trust dispute lawyer is of the utmost importance to protect the trust, your inheritance, and the legacy of the person who left it behind from an unfit trustee.
Visit our Contact Page and schedule a case evaluation to protect your inheritance from an unfit or malicious trustee. When the stakes are raised, trust us to guard your trust.
3 Responses
If a Trustee resigns and there is no other successor Trustee but the Trust indicates that beneficiaries may select a Trustee, is this a court procedure?
Trustee will not provide beneficiaries with financial statement I have sent emails I have sent registered certified letters I have sent texts and I have made phone calls trustee has not responded . I am 74 years old
Need consultation to determine grounds to proceed in a removal and replace trustee. The trustor is still living and was happily independent, very active, a dozen friends seen daily to weekly, driving, 2 mortgages paid off. Her recently created irrevocable trust was guided into existence by the trustor’s son, naming himself as trustee of the trust and 50% beneficiary. Also legally solidifying himself as legal and health POA if his mother, whom believed this was wise for her future potential need and this son is her only living child. (Adult)
The trustee son almost immediately starts in on uncontrolled spending for items to benefit himself (ex a big screen tv when she was perfectly content with her existing tv), using her credit cards to do so., Without discussion, he withdraws $26,000 of her savings, claiming to have invested it when she asks why her money is gone from her savings account, yet refusing his mother any details about the alleged investment. Closing her bank accounts without discussion or warning; leaving her without access to any of her cash assets, he had already emptied her safe, which she has routinely kept a reasonable amount of emergency cash handy for decades. After not visiting or even calling prior to his high and mighty position as Trustee, comes to town and Removed her copy of the recently created trust documents and gives away entire areas of her personal furniture for free to a gardener while she was out running errands (he does not live with her, he lives an hour’s distance.). Declares he is selling her $1.6 million 3 acre primary residence so she can move to senior living and instructs her to get outside and clean up the premises of pinecones before realtor comes in 3 days. She is as fit as an 80 year old that I’ve ever known, so she does. In exhaustion from taking she trips upon returning inside her home. She calls a friend that takes her to the hospital 2 or 3 more friends visit her there and wouldn’t you guess, no visit from son/medical POA. Now trustee tells her she is to move immediate apartment due to her declining health and cognitive function. That she has to now ‘do what he says and when he says to’. Her plan was to remain living there until such time she felt the need for help on a regular basis. He called her on a Saturday stating for her to, ‘be ready to be picked up the upcoming Friday’ and he’d have his girlfriend drive her car to her new apartment home. The Mom has made no secret of the fact she doesn’t like this girl and believes her to be untrustworthy. The trustor is a good friend of mine and she called me a few days after her son’s actions of closing the bank account, demanding she be ready, etc. Without knowing the trust document, except the irrevocable nature, I do not know if it is springing power or what the details not already mentioned above. She asks me to help her get her trust changed to a no -family financially planner she’s known for many years. I told her she’d have to take immediate steps and most likely every day before ‘Friday.’ Her son/trustee recently installed security cameras for ‘her protection’ inside her home (strangely, not on the outside of the massive property.’ I believe he was monitoring her and heard her displeasure with the situation as she had me on speaker. That same night of her call to me, another friend that she is very close to (a Vietnam Veteran that is her boyfriend, an upstanding man well known by myself and in the community, that has his own estate at the same or higher than hers, 78 yrs old, with 2 lakefront properties and an acre of commercial zoned land, and an above average income of his own creation.) went to see her as was something they did 5-7 days a week. While he was there the son called her and when she questioned him about the account, asked again about the $26k, told him she’s not moving yet, etc h the son began arguing with her and accused her of having her boyfriend sitting right there next to her (he was.) Anyway, whether or not the so. Was maliciously spying or not, he showed up the next afternoon and said, ‘grab some stuff, you’re moving right now.’ The son then text messages her boyfriend, proceeded to ban him from contacting his mom in any way, citing his POA, with the promise of legal action against him if he doesn’t comply. A third party hears of this ridiculousness and goes to her home to make sure she’s ok and not being forced to do something she doesn’t want to. The so. Is still there because he’s ’taking her.’ The son will not let the mom’s friend speak to her alone, he calls her friend a thief and a danger to his mother (unfounded) he ignores his mothers protest and threatens the friend with police action if she doesn’t leave the home and never return. The friend leaves peacefully and minutes later now she has the long cease and desist I’m my mothers POA and ‘I am over her now.’ Blah blah. I myself, had been told by his mother that eventually she would go to this community when she was ready (no Alzheimer’s dx or major issues, she takes aspirin and one rx! God, we should all be so healthy at 80!) and she wrote to me about this eventual move, saying,’ and you can visit me anytime!’ With flowers and hearts emoji’s. I do t even know how to make an emoji, this woman is truly incredible. Dressed and make up every day, Costco shopping 3x a week, errands galore, and lunch or visits with friends regularly. Then, poof, she has been taken against the will she expressed to me 24 hour before! So I give her time to settle and I try to call. Goes straight to a stick voice message that the person I’ve called can’t take my call. So I text her a cheery message that I had been told she’s begun her next adventure and to give me a call anytime. Within minutes I’m getting a call from an ill own #, which I never answer those type of calls. No message was left by voice but a few minutes later I get a text from that #, it’s my friends son/Trustee banning me from attempting any form of contact including in person. And telling me that her Dr. Informed her that he had to write the dmw letter that she co no longer drive. First of all o do t think her son realizes but her medical info is not his to repeat to another! Second of all. He’s captured her phone, even if he replaced it, she would t have anyone’s number memorized! And within days of his ever so loving care he’s take. Her driving privileges. He must think I’m an idiot. One search of CA DMV teaches me that is not how the dMV operates. In fact no government agency is going to be able to respond within a two week period of time to anything other than extreme, well supported, life threatening, etc.
I never had the pleasure of meeting her other 50% beneficiary, which she had previously shared with me to be her only grandchild born of her deceased son 25 years ago. I doubt this young woman even k owes that she is named in the trust that will likely be eliminated if assets of my friends son continues as such as so far. The son has no means or property of his own yet purchased a $100,000 Mercedes Mobil home so he wouldn’t have to drive back and forth to work. Then he quit that job and tried to make his mom buy the motorhome from him. She wasn’t interested in doing that. Last she told me, he was defaulting on the $1,000+ payments. The purchase of the motorhome was just before he rushed her into situating all of his titles. Last bit, I promise. To get those titles, he pushed her into stealing a the inheritance of his only step-brother in an existing trust created 15 years ago between my friend and her now deceased husband. As it was his separate prop money to build the dream home on 4 acres, the trust was for her to have it until her own passing, and he wanted to give her two sons $75,000 each and his own son the remainder of their estate (the $1.6 prop and a second $350k nearby.). It was set up with a non-biased party to act as executor of her estate upon passing. $75,000 in legal costs later, the step son graciously settles for the first $725,000 upon the sale of the 4 acre property. In total (so this step son gave up about a million bucks by settling this way.). My friend confided in me that throughout her marriage to the step so sons father, the step son was closer to her than either of her two sons and she wholeheartedly agreed with her husbands wishes as expressed in that trust. But when the stepson asked her to add his name as a party of interest (his $725,000 interest is recorded on the deed/title to property) my friends son convinced her that her step son was trying to force her to sell the house (not true, he simply repeated the clause in the title that he would have the right of sale if not added as a party to insurance policy.) That scared her and she agree to fight for the change in trusts. She won. Well I should say her son/new trustee won. What is the first thing he does once she wins new deal with the step son? Throw the two properties into an irrevocable trust, force his mom to move out for an easier sale of her primary home, take her means completely under his control, take her car from her possession misleading her to think a Dr. did it, and eliminate the local friends she’d made over the years since losing her husband and other son within 2 years of each other, there are at least 7 different also senior adults that he has threatened taking legal action against under the guise of ‘protecting’ his mom as her POE (power of Everything) we don’t know where he took her, but are working on finding out. While not demented mentally, and without anyway to seek legal advice on these matters he’s presenting to her as ‘just the way it is now.’ She cannot reach out. What resource does the law have to compel his accounting thus far and for an independent party to see if he is scting in full power of the POA’s prematurely? Please. Our hearts are breaking for her and if she could be allowed to tell me herself that she’s happy or that she’s trapped and without any say so. The so. Went as far as to state that her new facility has our pictures and names and has been informed to prevent any attempts to visit her! She’ll end up on government welfare because at $5,000 month for the apartment vs $309 month for property tax and some food and car costs, in her shape, she’s very likely to outlive whatever is left by him, not to mention the poor granddaughter ever receiving her special inheritance. The son is insolvent on his own. Ok, I apologize, lastly…. The sons newer job is working with this new girlfriend caregiving for a senior near his apartment that was recently convinced to take the to of them and herself (pay for) on a cruise over the last Christmas holiday. At least that is the reason he gave his own mother for not calling her on Thanksgiving or Christmas. So sad! Any tips would carry eternal value, please.