How to Remove a Trustee in California: Breach of Fiduciary Duty

How to remove a trustee in California comes down to one filing: a petition in the probate court under Probate Code § 17200. It asks the judge to remove the trustee, order them to repay what they took, and cut their fees. The court can do all three (Probate Code §§ 15642, 16420). It can also suspend the trustee's powers while the case is pending, so a sibling who is helping themselves does not keep the checkbook until trial.

Being a trustee is not ownership. A trustee holds your parent's property for the people named in the trust, and the trustee fiduciary duty California law imposes has four parts: loyalty, prudence, impartiality, and information. Break one and the law calls it a breach of trust (Probate Code § 16400). The money claims run on a three-year clock (Probate Code § 16460), and it may already be ticking.

What duties does a trustee owe beneficiaries in California?

A trustee must run the trust by its own terms (Probate Code § 16000) and meet four standards on top of that. Every trustee breach of fiduciary duty California courts act on falls under one of them. Our California trustee duties checklist lists them from the trustee's side.

Loyalty: the trust is not the trustee's piggy bank

A trustee must administer the trust "solely in the interest of the beneficiaries" (Probate Code § 16002) and may not use trust property for their own profit (Probate Code § 16004). The trustee self-dealing California law forbids is not limited to theft. The examples that come up most: the Sunnyvale house sold to a friend below market, "loans" from the trust to the trustee's business, the Cupertino condo rented to a daughter at half the going rate. A deal between trustee and beneficiary that leaves the trustee ahead is presumed a breach, and the trustee must prove otherwise (Probate Code § 16004).

Prudence: careful, not clever

A trustee must act with "reasonable care, skill, and caution," the way a prudent person would run a similar enterprise (Probate Code § 16040). A Palo Alto house left empty and uninsured for two years, or a tax bill ignored until the penalties pile up, is a prudence problem. Genius is not required. Attention is.

Impartiality: no favorites among beneficiaries

With more than one beneficiary, the trustee must deal impartially with all of them (Probate Code § 16003). The trustee-sibling who pays themselves in January and tells you to wait until "things settle" is the everyday version.

Information: you are entitled to know what is going on

A trustee must keep beneficiaries "reasonably informed" (Probate Code § 16060) and account at least once a year to beneficiaries entitled to distributions (Probate Code § 16062). An account shows the money in, the money out, what the trust holds, and what the trustee was paid (Probate Code § 16063). "Trust me" is not an account. See our guide on getting an accounting or a copy of the trust.

Can you sue a trustee for things done while your parent was alive?

Any beneficiary, co-trustee, or settlor can petition the probate court to remove a trustee (Probate Code §§ 15642, 17200). While your parent is alive, competent, and able to revoke the trust, the trustee's duties run to your parent, not to you (Probate Code § 15800). In Estate of Giraldin the California Supreme Court held that beneficiaries "do have standing to sue for a breach of that duty after the settlor has died." One limit: a trustee who followed the settlor's own directions violated no duty.

The claims are yours. In Asaro v. Maniscalco the court said beneficiaries have their own causes of action against trustees, "not derivative of the settlors' rights."

What are the grounds for removing a trustee in California?

Probate Code § 15642 lists them:

• Breach of trust.
• Insolvency or unfitness to administer the trust.
• Hostility or lack of cooperation among co-trustees that impairs the administration.
• A trustee who "fails or declines to act."
• Excessive compensation.
• A sole trustee the law presumes should not take gifts, such as the drafter or a non-relative care custodian (Probate Code § 21380), unless the court finds the settlor truly chose them.
• Substantial inability to manage the trust's finances or do the job.
• Substantial inability to resist fraud or undue influence.
• "Other good cause."

Two of those surprise people. Hostility among co-trustees is a ground by itself, no theft required. And "fails or declines to act" means a trustee can be removed for doing nothing. Eighteen months with no sale, no distribution, no account, and no returned calls is not carefulness. It is the statute's fourth ground.

One caution: a petition filed in bad faith, where removal would be contrary to what the settlor wanted, can cost you the trustee's costs and attorney's fees (Probate Code § 15642). File because the trustee is breaking the rules, not because you are angry.

What can the court order against a trustee who breached the trust?

The remedies are in Probate Code § 16420. The court can order the trustee to do the job, stop a breach, and repay the trust. It can appoint a temporary trustee, remove the trustee, set aside bad acts, cut the trustee's pay, and trace property that was wrongfully disposed of.

The money order is called a surcharge. When you surcharge a trustee, the court charges the trustee personally for the trust's loss with interest, any profit the trustee made with interest, and profit the trust would have earned but for the breach (Probate Code § 16440). A trustee who acted reasonably and in good faith may be excused. Selling the house to a friend below market is not that.

How long do you have to sue a trustee for breach of trust?

A breach-of-trust claim must be filed within three years after you receive a written account or report that adequately discloses the problem. If you never got one, or it did not disclose the problem, the clock runs from when you discovered or reasonably should have discovered it (Probate Code § 16460). The trap: a "written report" need not be a formal account. A letter with a spreadsheet attached can count, if it tells you enough to put you on notice.

Concealment can help you. In Asaro v. Maniscalco the trustees never sent the required notice that the trust had become irrevocable (Probate Code § 16061.7) and kept the beneficiary in the dark; the court held his claims timely under the delayed discovery rule. Do not count on that. Count three years from the first paper you got.

What if the trustee dies before you sue?

If the trustee dies while your claim is still alive, the three years no longer control. Any claim you could have brought against the trustee while alive must be filed within one year of the trustee's death. That period "shall not be tolled or extended for any reason" beyond a few listed procedures (Code of Civil Procedure § 366.2). Stoltenberg v. Newman applied the one-year rule to fraud claims based on a deceased trustor-trustee's statements, even though the suit named the successor trustee. See our deadline guide.

How do you remove a trustee in California?

In Santa Clara County, trust matters are heard by the probate court in San Jose. People google "sample petition to remove trustee California" and try to file one themselves. Don't. The petition is a lawsuit: facts, grounds under Probate Code § 15642, and specific orders. A typical one asks the court to suspend the trustee now, order a full accounting, surcharge the trustee, cut the fees, and remove and replace the trustee (Probate Code §§ 15642, 16064, 16420, 16440, 17200, 17206).

The trustee's side of the same petition is in our guide to responding to a petition to remove a trustee.

What happens at the first hearing?

The first hearing is usually about protection, not final removal. If trust property or a beneficiary may suffer loss while the petition is pending, the court can order the trustee to surrender the property to a co-trustee, receiver, or temporary trustee and can suspend the trustee's powers (Probate Code § 15642). A temporary trustee can run the trust in whole or in part (Probate Code § 17206).

In Santa Clara County an emergency request can be presented ex parte, on shortened notice: 24 hours' notice to the other side, and 48 hours for an opposition unless the matter needs same-day action (Probate Local Rule 2(B)(3)). The court's rule is blunt: "If there will be an objection, and the matter is not urgent, do not submit it ex parte." The emergency has to be real: money moving, a house in escrow, a trustee gone silent.

Who replaces a removed trustee?

If the trust names a backup or a method for picking one, that controls. If not, the court appoints a trustee and must consider any nomination by beneficiaries who are at least 14 (Probate Code § 15660). In a contested Santa Clara County family the replacement is often a professional fiduciary, a neutral who serves as trustee for a living under the Professional Fiduciaries Act (Business and Professions Code § 6501). That is how to remove a trustee in California without handing the keys to the next sibling in line.

What should you do next?

1. Write down dates, amounts, and who said what. Keep every letter, statement, and text.
2. Ask in writing, by mail and email, for a copy of the trust and a full accounting. If 60 days pass with nothing, and nothing came in the prior six months, the court can order both (Probate Code § 17200).
3. Pull deeds, bank statements, and the trustee's emails.
4. Calendar the clocks: three years from any written report (Probate Code § 16460), one year from the trustee's death if the trustee died. The deadline wizard will give you a date. If money was taken from your parent while alive, it may also be financial elder abuse.
5. Do not sign a receipt, release, or waiver until a lawyer has read it. A written waiver of accountings sticks until you withdraw it, and then only going forward (Probate Code § 16064).
6. Call a trust litigation lawyer this week, not next quarter.