A trustor designating a trustee signals a great deal of confidence in their integrity and abilities. However, trustees can prove to be unfit, which is when pursuing removal is critical. Ultimately, this legal process can be complicated, lengthy, and costly. Working with a premier trust lawyer is essential to minimize costs, facilitate the process, and maximize success. Here is how to remove a trustee:
Who Has Trustee Removal Power?
Before removing a trustee, you must understand who has this authority. Typically, the trustor selects the trustee in good faith.
Unfortunately, it sometimes becomes clear the trustee is not suited for their role. This inability is sometimes evident while the trustor is still alive, which makes removal easier, but it sometimes does not become clear until after they pass.
In rare instances, the trustee may voluntarily resign. By law, a few individuals have the power to remove a trustee:
- The trustor
- Trust beneficiaries
- Probate court
Still, any personal representative of the estate and anyone named in the trust document can request removal. Removing a trustee is a complex legal process that can be costly to undertake alone and requires the expertise of a premier trust lawyer to navigate.
Reasons for Removing a Trustee
Several reasons can warrant consulting with a trust lawyer to remove a trustee. No matter the reason, you must prove they are breaching their fiduciary duties. Examples of breaching fiduciary duty include:
- Fraud or misappropriation of trust assets
- Financial insolvency
- Violating terms in the trust agreement
- Self-dealing or conflict of interest
- Inability to work with other trustees
- Hostility toward beneficiaries
- Mismanaging trust assets
- Charging excessive fees
- Mental incapacity
- And more
How to Remove a Trustee
Trustors, Beneficiaries, and Trustees
The process for trustee removal is complicated and varies depending on your role and the circumstances surrounding a trust.
Working with a trust lawyer when setting up a trust and when pursuing removal is integral to ensuring you account for every possible contingency and understand your rights. A trust instrument should clearly define circumstances under which you can remove a trustee.
A trustor ordinarily has the authority to remove a trustee. Sometimes, co-trustees may experience contention that leads them to try removing each other. If the trustor is alive, the trustees must express this issue to them so they can make the final decision.
If the trustor is dead or otherwise incapacitated, co-trustees should present their issue to beneficiaries for support in pursuing removal. Trust instruments often include provisions empowering beneficiaries to remove or replace trustees.
Typically, beneficiaries need a majority vote to pursue removal. Always review the trust document with an estate litigation attorney to understand your options.
Petitioning for Trustee Removal
If an interested party believes it is in the best interest of the trust to remove a trustee, they must contact a trust lawyer to draft a petition for their removal and a formal accounting.
An accounting is an integral tactic because, during this process, they will acquire an order permitting a discovery, which enables a lawyer to:
- Depose the fiduciary
- Subpoena evidence
- Ascertain records
- Interview witnesses
If a trustee refuses to change their behavior and remediate damages, the judge will hold a hearing. An estate litigation lawyer then provides the evidence they collected in the form of documents and testimony and adheres to the probate court’s Rules and Procedures.
If a judge determines there are grounds for removal, they can order the fiduciary’s removal and surcharge them for damages.
Contact a Premier Trust Lawyer for Trustee Removal Today
When a trustee proves to be unfit, pursuing a removal is essential to preserve and protect a trust. However, this is a complicated, costly legal process that requires compiling evidence per the probate court’s Rules and Procedures. Minimizing costs, facilitating the process, and maximizing your chances of success require working with an estate litigation attorney.
Fortunately, at Gokal Law Group, we boast unparalleled expertise and an unfaltering dedication to clients. We always go above and beyond to ensure your trust is in good hands. Contact us now to determine if you have grounds for trustee removal.