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.

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.

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."

Divorce is never easy, but we can help. Learn More


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.

Divorce is never easy, but we can help. Learn More
How to Delete a Trustee From a Trust in California


Related articles

How to Replace a Trustee of a California Living Trust

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.

What Is Diversion of Property From a Trust?

Diversion of trust property is a legal term used to describe the misapplication or misuse of trust property. Not only does diversion of trust property violate the terms of the trust itself, but it's often a criminal act. A trust agreement forms a contract between the person who sets up the trust in the first place, the trustee and the beneficiary. The trustee has a fiduciary duty to act in the best interests of both the trust and its beneficiary.

How to Remove an Executor or Trustee for California Probate

If an executor or trustee fails to perform her various duties, California law allows an interested party to petition the probate court to remove and replace her with someone else. Several types of breach or mismanagement can lead to the removal of an executor or trustee, but the petitioner will need to be able to support his assertions before the court.

Get Divorced Online

Related articles

The California Law on Trustee Incompetency

Removing a trustee for incompetence in California can be a painful process for all concerned. Since trustees are ...

Removing a Successor Trustee

A successor trustee is a person or entity who administers a trust after its original trustee dies or is incapacitated. ...

Can I Change a Successor Trustee Without a Lawyer?

A successor trustee of a trust is the party appointed to replace the trustee named in the original trust deed. There ...

The Format for Resignation and Acceptance of a Trustee for California

A trustee of a trust is an individual or entity responsible for managing the assets of the trust in accordance with ...

Browse by category
Ready to Begin? GET STARTED