California Trustee Eviction Process

By Jim Thomas

If you are a beneficiary of a trust and believe the trustee is incompetent, it may be possible to petition a probate court to remove that trustee. Often, however, removing the trustee from his position can be more difficult than filing the petition. California law presumes trustee competence, so the burden of proof falls on the trust's beneficiary to provide sufficient and compelling evidence to overcome the presumption.

If you are a beneficiary of a trust and believe the trustee is incompetent, it may be possible to petition a probate court to remove that trustee. Often, however, removing the trustee from his position can be more difficult than filing the petition. California law presumes trustee competence, so the burden of proof falls on the trust's beneficiary to provide sufficient and compelling evidence to overcome the presumption.

Trustee Obligations

A trust agreement gives a trustee the power to hold title to the property of another person or persons for their benefit during the life of the trust. The trustee has the fiduciary duty to administer the trust with the highest degree of good faith and should refrain from any appearance of impropriety. A trustee can be evicted from the position by his own resignation, by removal under the terms of the trust or by court order.

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Grounds for Removal

California Code 15642 sets forth specific grounds for evicting a trustee. These include a breach of trust, insolvency of the trustee and proof that the trustee is unfit to administer the trust. Additional grounds include hostility that impairs the administration of the trust, failure or refusal to act, excessive compensation, ineligibility for the position and any other "good cause."

Evidence

If you petition the court to remove a trustee, consider showing the trustee's lack of cognitive capacity to serve, which encompasses susceptibility to undue influence and serious mistakes managing the trust. A trustee also could be ousted if the trust was improperly created or funded. As California wills and trusts attorney James Cunningham, Jr. states, courts have held that an elderly trustee can be removed if he becomes unable to perform basic activities of daily living, such as maintaining shelter, and feeding and clothing himself. A trustee unable to resist fraud, duress, menace or undue influence also can be evicted.

Court Removal

In California, the form to petition for a trustee's removal can be obtained online from the appropriate county clerk's office. The Superior Court of California in Santa Clara County, for example, allows you to file such a petition online. The first page of the petition provides space for you to list the reasons for requesting the trustee's removal. The second page of the petition provides space for you to list the names of the trustee or trustees that you would like to evict and allows the petition to be served upon them by mail.

Practical Considerations

Trustee removal lawsuits can be costly. In addition, the case could drag out for years and might deplete the trust's assets if the trustee mounts a vigorous defense. Lastly, trustee eviction proceedings between family members could damage or destroy relationships.

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The California Law on Trustee Incompetency

References

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Absent a court order, a person cannot be compelled to act as a trustee. Even if a person accepts the position of trustee, unforeseen circumstances may prevent that person from carrying out the duties of trustee. Trust documents almost always address the issue of a trustee’s resignation. Absent an express resignation provision, consult with an attorney to determine your resignation rights under state law. In most cases, a written resignation letter delivered to the next trustee listed in the trust and to the person who created the trust is required.

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