Individuals who are serving as trustees have a number of responsibilities which are set forth in the California Probate Code and in the governing trust instrument itself. Often, family members with no previous trust management experience are selected to serve as trustees. While this is common, it is not always wise, and this decision should be carefully thought through before being made.
Inexperienced trustees commonly make mistakes and, while not all mistakes will subject a trustee to removal, some mistakes will.
California Probate Code § 15642 provides several scenarios in which a trustee may be removed, including removal for committing a “breach of the trust.” This is a broad category and encompasses mismanagement of trust property, misallocation of trust assets, failure to make timely distributions, and more. Some other grounds for removal are: 1) a trustee’s insolvency, 2) hostility or lack of cooperation among cotrustees, 3) a trustee’s failure or declination to act, and 4) payment of excessive compensation by the trust for the trustee’s services.
In addition to removal pursuant to California statutes, a trustee may also be removed according to the specific terms of the trust instrument. A careful review of the trust instrument is recommended in order to determine whether a non-judicial procedure to remove a trustee is available, prior to filing an action for trustee removal in state court.
Trustees who are subject to removal due to breaches of their fiduciary duties are likely also subject to trustee surcharge as a remedy the damage caused to the trust by the errant trustee.