A living trust is a revocable trust created during its creator's lifetime. The creator is also the trustee, and he can tweak its terms any time he likes. He can also name another trustee, if he wishes, and remove that trustee at any time. When the creator of the trust dies, however, his trust becomes irrevocable. This shifts the power to his successor trustee, the individual he named to take over for him after his death. Under some circumstances, California law allows the decedent's beneficiaries to remove the named successor trustee and nominate someone else to serve instead.
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Review the trust documents. If they include a “certificate of independent review,” it may be difficult to replace the trustee under California law. This means that its creator consulted with an attorney before selecting his successor trustee, and the attorney counseled him regarding his choice and approved it.
Collect documentation to prove your position that the court should remove the existing trustee. You must have grounds to remove and replace the trustee. In California, these grounds include refusal or failure to perform the tasks associated with the job, bickering with co-trustees to the point where the behavior impedes settlement of the trust or a breach of fiduciary duty, meaning that the successor trustee committed some act that was detrimental to the trust or its beneficiaries.
Complete a petition asking the court to remove the successor trustee. California offers an extensive self-help website that provides these forms, and they are also available from other websites. Fill in the blanks, identifying your relationship to the trust, such as if you are a beneficiary, a co-trustee or have another interest in its administration. Explain why you think the court should remove the trustee and attach copies of the proof of wrongdoing you’ve gathered.
Serve a copy of your completed petition on everyone who has an interest in the trust. These include all beneficiaries, as well as the successor trustee and any co-trustees. The petition includes spaces for you to list the names and addresses of all these people. California law allows you to serve them by mail, but a disinterested party must be the one who actually deposits the petition in the mailbox or takes it to the post office.
Ask the the person who mailed your petition to sign the second page, attesting that he placed copies in the mail to everyone you listed.
File your completed petition with the probate court in the California county where the creator filed his trust. The court will notify you if a hearing is required.
Tips & Warnings
If the trust documents contain provisions expressly allowing the trust's beneficiaries to change the trustee, you do not have to petition the court. Instead, the trustee you’ve chosen to replace the original person must file an affidavit of change of trustee, notifying the court. This form is also available from California's self-help website.
California’s Rules of Court contain very specific guidelines regarding the preparation of a petition to remove a trustee. If you don’t use a form approved and provided by the court, you must follow these guidelines to the letter. You must also put together a very good argument for removal of the trustee. If you decide to draft the petition on your own, without the help of an attorney, have a professional review it before you submit it to make sure you’ve met all necessary requirements and burdens of proof.
References & Resources
- The Law Offices of Phillip C. Lemmons: Wills and Trusts
- Onecle: California Probate Code Section 15642
- Law Offices of Shahram Miri: Estate Planning in California
- Title 365: Affidavit of Change of Trustee (PDF)
- California Estate Corp.: Keeping Control with a Revocable Living Trust
- Justia.com: Petition to Remove Trustee (PDF)
- Estate Street Partners: Revocable Trusts vs. Irrevocable Trusts
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