How to Replace a Trustee of a California Living Trust

By Beverly Bird

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.

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.

Step 1

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.

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Step 2

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.

Step 3

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.

Step 4

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.

Step 5

Ask the person who mailed your petition to sign the second page, attesting that he placed copies in the mail to everyone you listed.

Step 6

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.

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Removing a Successor Trustee

References

Related articles

What if You Violated an Irrevocable Trust?

The person appointed to oversee an irrevocable trust must act according to the terms of the trust and in the best interest of those who benefit under the trust. While all states recognize this duty, the type of recourse available in cases of breach can vary. Knowing when you may petition the court for removal of a trustee and when he may be personally liable for financial losses will help ensure that your trust operates according to the wishes of its creator.

Responsibilities of a Successor Trustee Upon the Trustees' Deaths

Initially, a successor trustee's job is one of waiting in the wings. As the name of the position suggests, this individual stands by, ready to succeed the existing trustee – or multiple trustees, which may be the case when a married couple forms a trust together. The initial trustee is typically the grantor of a revocable trust. He manages the trust he created and funded during his lifetime, but when he can no longer do so, and if his co-trustee has predeceased him or dies with him, his successor trustee steps in and takes over.

Trustee Duties for a Revocable Trust After Death

When a grantor creates a revocable trust, he must appoint a trustee to manage or administer the trust. Trustees have fiduciary duties, meaning they must always administer the trust in the best interest of the beneficiaries and pursuant to the terms of the trust document. Moreover, if the trust doesn’t terminate upon the death of the grantor, the trustee continues to be responsible for these duties pursuant to the terms of the trust document.

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