Removing the Executor or Trustee of an Estate

Removing Estate Executor

In California, as in most states, executors and trustees have defined responsibilities that they must carry out. These duties generally include:

  • Paying funeral costs
  • Ensuring that the decedent’s wishes are carried out
  • Possessions are inventoried
  • Debts and taxes are paid
  • Property is distributed to beneficiaries in a proper fashion

In short, executors and trustees (from here, we’ll simply refer to ‘trustees’ to cover both) are bound by law to serve the best interests of beneficiaries. Sometimes, trustee falls short of this obligation. Sometimes this is due to incapacity—the person’s physical or mental health has declined since they were named by the decedent, and they are no longer capable of properly discharging their duties. Other times, trustees prioritize their own interests, and behave in a fraudulent manner.

The California Probate Code specifies that a trustee can be challenged and removed for any “good cause.” Examples of such causes provided by the Code include if a trustee:

  • Commits a breach of trust
  • Engages in a conflict of interest
  • Is “unfit to administer the trust”
  • Is actively hostile to beneficiaries, affecting the administration of the trust
  • Fails to collaborate productively with co-trustees
  • Simply fails to act when compelled to, or chooses not to act
  • Is excessively compensated

It should be noted that these are not the only reasons that a trustee can be disqualified.

If you believe that that a trustee is not fit to serve, there are a number of steps that have to be taken in order to challenge and remove them. Here’s a brief rundown of the process.

Determine whether you have standing to challenge the trustee.

In legal parlance, “standing” means that you have grounds for bringing a suit to court because you are directly harmed by something. In the case of wills and trusts, only “interested parties”—those who are beneficiaries, or would/should be beneficiaries due to their relation to the deceased—have the standing to challenge a trustee.

Identify your rationale for having the trustee removed, and collect supporting documentation.

This may be very brief and to the point. For instance, were they not actually named as trustee, or did the trustee forge the document naming them trustee? It’s more likely that you’ll be focused on the behavior of the trustee, and you’ll need to provide proof of the trustee’s incapacity or wrongdoing. This might include:

  • Documentation or other verifiable indications of physical/mental infirmity
  • Text messages or emails showing that the trustee is working in their own interests
  • Any documentation showing that the trustee isn’t ensuring that beneficiaries’ interests are being served
  • Financial records showing malfeasance or embezzlement
  • Proof that the trustee has been previously jailed for a criminal offense which may disqualifies them
  • Documents indicating that the trustee lied to trustees or court representatives, or failed to heed a court order
  • Records of communications showing that the trustee failed to communicate with beneficiaries, or withheld information

Whatever your rationale, make sure that the information you collect supports your argument for removing the trustee. Making a claim that isn’t supported by the evidence will result in having your challenge dismissed.

Keep in mind that a difference of opinion is not grounds for removing a trustee. The burden of proof is on you. Your evidence will need to show that the trustee clearly behaved in a malfeasant, reckless, or otherwise grossly inappropriate manner.

Identify a successor trustee, and submit a “Petition to Remove Trustee” to your local probate court.

Before you officially challenge a trustee, you must identify a successor. Many trusts and wills name successor trustees as fallbacks, in case the primary trustee is unable or unwilling to serve. If no successor has been named by the decent, then you must identify an appropriate person to step in as trustee if your challenge is successful, or a trust company willing to perform to fulfill this role.

In California, the legal process to remove a trustee is initiated by filing a Petition to Remove Trustee (or the corresponding document for an executor). This petition must be filled out by someone with standing, as discussed above. If you do not have standing, have someone with standing fill it out.

This petition, along with a filing fee, must then be submitted to the court clerk of the appropriate court—most likely the last county where the decedent lived, rather than where the trust was signed. The court will notify interested parties of the petition, and will set a hearing date.

On the date of the hearing, you will need to bring all of your evidence, as well any relevant witnesses who are willing to testify in support of your allegations. A word of warning: The trustee is allowed to use assets held by the trust to pay for their legal defense, whereas you may not. However, if they lose the case, they may be required by the court to pay the trust back.

If the two sides are unable to come to an agreement during the hearing—such as the trustee agreeing to step down—then the probate judge will ultimately make a decision.

The process of removing an executor or trustee is complex, and it’s easy to make mistakes that can jeopardize your case. If you believe that removal is necessary, we strongly advise that you consult with a probate attorney.

If you would like our assistance, you can call us at 916-400-4516, or send us a message using our site’s contact form.