What the law says
A trustee holds other people's property and owes them duties that the Probate Code spells out in sections 16000 through 16081. The duty of loyalty in section 16002 means administering the trust solely in the interest of the beneficiaries. Section 16003 requires impartiality among beneficiaries. Section 16004 forbids self-dealing: the trustee cannot use trust property for their own benefit or take part in a transaction where their interest conflicts with the beneficiaries'. Section 16040 requires the care of a prudent person, and sections 16060 through 16064 require the trustee to keep beneficiaries informed and to account.
Executors and administrators of estates owe the same kinds of duties under the probate rules that govern estate administration.
When a trustee breaks these duties, Probate Code section 16420 lists the remedies: the court can compel the trustee to perform, stop them from committing a breach, order them to pay for any loss or profit, set aside their acts, reduce or deny their compensation, and remove them. Section 15642 lists the grounds for removal, which include breach of trust, unfitness, hostility between co-trustees or with beneficiaries that impairs administration, and failure to act.
Section 16460 sets the limitations period. If a trustee provides an account or report that adequately discloses a claim, the beneficiary has three years from receiving it to sue. If nothing was disclosed, the general limitations rules apply from the time the beneficiary discovered or should have discovered the breach.
What you can do
Put your concerns in writing to the trustee, and ask for an accounting and the underlying records. A trustee who is doing their job will answer. A trustee who is not usually stalls, and the stall is itself evidence.
Collect what you can see from the outside: property records showing sales or transfers, business filings, anything the trustee has said in writing about what they are doing with the money. If the trustee is a sibling, the family often knows more than it realizes about what has been sold and where the proceeds went.
The claim is filed as a petition in probate court under Probate Code section 17200. It typically asks the court to compel an accounting, surcharge the trustee for losses, and remove and replace them. Where the trustee has moved property into their own name, a section 850 petition to recover it is filed with it. Where the trustee's conduct amounts to financial elder abuse of the person who made the trust, that claim is added as well.
If the trust is being drained in real time, the court can suspend the trustee's powers and appoint an interim trustee while the case proceeds.
How fast you need to move
The three-year clock under section 16460 starts when the trustee gives you an account or report that discloses the facts behind your claim. Trustees who have something to hide sometimes bury it in an accounting on purpose, hoping the clock runs before anyone reads it closely. Read every accounting when it arrives.
Where no accounting has been provided, the deadline is less certain, but the practical clock is faster than the legal one: trust assets that have been sold and spent are much harder to recover than assets that are still there.
How we handle these cases in Santa Clara County
We begin with a written demand for an accounting and the supporting records, because the trustee's response, or silence, frames the case. Then we reconstruct what happened from bank statements, brokerage records, property records, and the trustee's own filings. Legion, the AI litigation platform our founder co-founded, lets us trace transactions through thousands of pages of statements in days.
Breach of fiduciary duty petitions in Santa Clara County are filed in the probate court in San Jose. When the assets are at risk, we ask the court for interim relief first: suspension of the trustee, an order freezing accounts, or appointment of a neutral trustee. The surcharge and removal claims follow on the court's calendar.
Trustees who have breached their duties usually cannot use trust money to defend themselves, and the court can order them to pay the beneficiaries' fees. We raise that early, because it changes the trustee's calculation about settling.
Common situations
- The trustee sold the family home to a friend for less than it was worth. A sale below market to an insider is self-dealing. The court can set the sale aside or surcharge the trustee for the difference.
- The trustee has been paying themselves and cannot explain the numbers. A trustee is entitled to reasonable compensation, but it has to be reasonable and disclosed. Undocumented fees are a surcharge claim.
- The trustee is also a beneficiary and favors themselves. Being both is common and legal. Favoring yourself is a breach of the duty of impartiality.
- The trustee has simply done nothing for two years. Failure to act is a ground for removal, and the delay itself can be a breach when assets lose value or bills go unpaid.
Am I too late?
How long do I have?
General information, not legal advice. Confirm your dates with a lawyer.
Questions people ask about trustees who break the rules
What counts as a breach of fiduciary duty by a trustee?
Self-dealing, favoring one beneficiary over another, ignoring the trust’s terms, failing to account or to keep beneficiaries informed, reckless investing, and paying themselves fees the trust does not allow. Bad intent is not required; a careless trustee can still be liable.
Can a trustee be removed?
Yes. The court can remove a trustee who breaches the trust, is unfit, has hostile relations with beneficiaries that impair administration, or for other good cause (Probate Code section 15642). Removal is often paired with a claim for the money.
Who pays my legal fees?
The starting rule is that each side pays its own, but a trustee who breached their duties can be ordered to pay fees personally, and a trustee generally cannot use trust money to defend their own wrongdoing. We discuss fees in the first conversation.
My sibling trustee is paying themselves. Is that allowed?
A trustee is entitled to reasonable compensation unless the trust says otherwise, but the amount must be reasonable and disclosed. Undisclosed or excessive fees are a common surcharge claim.
This page is general information, not legal advice, and reading it does not make you a client of Rothrock Legal. No attorney-client relationship exists until an engagement letter is signed. Deadlines depend on your facts and change; confirm yours with a lawyer.
