Removing a Trustee and Breach of Trust Claims in California

Last updated: October 2026

To remove a trustee in California, a beneficiary or cotrustee petitions the probate court under Probate Code sections 15642 and 17200. Grounds include a breach of trust, unfitness, hostility or lack of cooperation among cotrustees, failure to act, and excessive compensation. The court can also order the trustee to repay losses, called a surcharge, and can suspend the trustee while the petition is pending. Bay Legal represents beneficiaries and trustees in these disputes throughout California.

What duties does a trustee owe?

A trustee must use the care, skill and caution a prudent person would use in the same role (section 16040). The core duties are:

• Follow the trust. Administer it according to its terms (section 16000).
• Loyalty. Act solely in the beneficiaries’ interest (section 16002).
• Impartiality. Treat multiple beneficiaries fairly (section 16003).
• No self-dealing. A transaction in which the trustee gains an advantage from a beneficiary is presumed to breach the trustee’s duties (section 16004).
• Protect the property. Take control of it, keep it separate and make it productive (sections 16006, 16007 and 16009).
• Invest prudently. Manage the portfolio as a prudent investor and diversify unless it is prudent not to (sections 16047 and 16048).
• Inform and account. Keep beneficiaries reasonably informed, answer reasonable requests and account to current beneficiaries (sections 16060, 16061 and 16062).

What are the grounds to remove a trustee?

Under Probate Code section 15642, the court can remove a trustee who has committed a breach of trust, is insolvent or unfit, fails or declines to act, or charges excessive compensation. Removal is also available when hostility or lack of cooperation among cotrustees impairs administration, when the trustee is substantially unable to manage the trust or resist fraud or undue influence, and for other good cause. A sole trustee who drafted the trust, or who falls in another section 21380 category, can be removed and made to pay the costs.

Friction between a beneficiary and a trustee is not a removal ground by itself. The court looks for a breach, unfitness, a failure to act or other good cause.

What can a court order for a breach of trust?

Section 16420 lists the remedies a beneficiary or cotrustee can seek. Several are often requested together.

The court may excuse a trustee who acted reasonably and in good faith from part or all of a surcharge (section 16440).

How does a petition to remove a trustee work?

1. Ask in writing. Request information or an account. If the trustee does not respond within 60 days, and none was given in the prior six months, the court can compel it (section 17200). See trust accounting disputes.
2. Gather the record. Statements, tax returns, deeds and correspondence usually show whether a duty was breached.
3. File the petition. It asks the court to remove the trustee and redress the breach, and is filed in the county where the trust is principally administered (section 17005).
4. Give notice. Trustees and beneficiaries receive at least 30 days’ notice of the hearing (section 17203).
5. Seek interim protection if needed. If trust property may suffer loss, the court can suspend the trustee and order the property turned over to a cotrustee, receiver or temporary trustee (section 15642(e)).
6. Discovery and settlement. Civil discovery rules apply, and courts often order or encourage mediation. See mediation.
7. Hearing. A probate judge decides; there is no jury (section 825).

What defenses can a trustee raise?

A beneficiary who consented to an act, later released the claim, or affirmed the transaction generally cannot sue over it (sections 16463 to 16465). Consent fails if the beneficiary lacked capacity, did not know the material facts, or was induced by the trustee’s improper conduct, or if a self-interested deal was unfair. A trust clause can relieve a trustee of some liability, but never for intentional, grossly negligent, bad-faith or reckless breaches, or for the trustee’s profit from a breach (section 16461).

A trustee of a revocable trust is not liable for following the settlor’s written directions (section 16462). There is no statutory advice-of-counsel defense, though acting on advice can show good faith.

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

Generally three years. Under Probate Code section 16460, the period runs from receipt of a written account or report that adequately discloses the claim. If no such account or report was given, it runs from when the beneficiary discovered, or reasonably should have discovered, the claim.

Does the same apply to executors?

Similar rules apply to an executor or administrator in a court-supervised estate. The court can remove a personal representative for waste, mismanagement, neglect or other cause (section 8502) and can suspend their powers while the petition is pending (section 8500). A personal representative must use ordinary care and diligence and can be surcharged for a breach on the same measures as a trustee (sections 9600 and 9601). See estate administration.

Who pays the legal fees?

Each side usually pays its own fees (Code of Civil Procedure section 1021), with exceptions. In a contest of a trustee’s account, the court may shift fees to whichever side acted without reasonable cause and in bad faith (section 17211). A trustee who fails to serve the required trust notification can owe a beneficiary’s fees (section 16061.9). Fees are also available for financial elder abuse (Welfare and Institutions Code section 15657.5). Courts sometimes award fees from trust assets when the litigation substantially benefited the trust.

Bay Legal bills trustee disputes at an hourly rate and explains the arrangement in writing before work begins.

Frequently Asked Questions

Can I remove a trustee because we do not get along?

Not on that basis alone. Probate Code section 15642 allows removal for a breach of trust, unfitness, failure to act, excessive compensation, hostility among cotrustees, and other good cause. Conflict between a beneficiary and a trustee matters when it shows a breach, such as refusing to provide information or favoring one beneficiary. Document specific failures before filing.

Can a trustee make me sign a release before paying my distribution?

No, if the trust requires the distribution. Under Probate Code section 16004.5, a trustee may not condition a required distribution on a release of liability. The trustee may still ask for a voluntary release, keep a reasonable reserve for expenses, withhold an amount that is reasonably in dispute, or seek court approval of an accounting.

Can the court remove a trustee before the case is decided?

The court can act on an interim basis. Under Probate Code section 15642(e), if trust property or a beneficiary’s interest may suffer loss while a removal petition is pending, the court can suspend the trustee’s powers and order the property turned over to a cotrustee, receiver or temporary trustee. That protection can last through any appeal.

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

Generally three years under Probate Code section 16460. If you received a written account or report that adequately disclosed the claim, the three years run from receipt. Otherwise they run from when you discovered, or reasonably should have discovered, the claim. Read every account you receive, because silence can start the clock.

Can a trust clause excuse a trustee’s misconduct?

Only in part. Under Probate Code section 16461, a trust can relieve a trustee of liability for some breaches, but not for breaches committed intentionally, with gross negligence, in bad faith or with reckless indifference, and never for profit the trustee made from a breach. Clauses that shorten the time to object to an account have strict notice requirements.

Related Questions

What is a surcharge?

A surcharge is a court order requiring a trustee to pay for a breach of trust. Under Probate Code section 16440, the court charges the loss, the trustee’s profit or the trust’s lost profit, whichever is appropriate.

What is a temporary trustee?

A temporary trustee is a person the court appoints to manage trust property while a dispute is pending. Probate Code sections 15642(e) and 16420 allow the appointment when the property is at risk.

What is the Prudent Investor Rule?

It is the standard for trust investments under Probate Code section 16047. A trustee must manage the whole portfolio with reasonable care, skill and caution and, under section 16048, diversify unless it is prudent not to.

Can a trustee be paid while being sued?

A trustee remains entitled to compensation unless the court orders otherwise. A court can reduce or deny compensation as a remedy for a breach under Probate Code section 16420, and excessive compensation is itself a removal ground.

About the attorney

Ryan R. Wong handles probate and trust litigation at Bay Legal, including petitions to compel an accounting, remove and surcharge a trustee, and recover trust property under Probate Code section 850. Ryan has practiced in the probate courts of Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties. Trustee disputes are part of Bay Legal’s probate litigation work within its Probate & Trusts practice.

Talk to a California trust litigation attorney

If a trustee is not providing information, delaying distributions or dealing with trust property for personal benefit, put your request in writing and keep copies. To discuss a trustee dispute, call the office nearest you or email intake. Trustees who need help with their own duties can see trust administration.

Bay Legal, P.C. — serving California statewide

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(650) 668-8000

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3211 Cahuenga Blvd W Ste 212, Los Angeles, CA 90068
(213) 668-8000
Intake: intake@baylegal.com
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Website: https://baylegal.com

This page is general information about California law and does not constitute legal advice or create an attorney-client relationship. For advice on your specific situation, contact a licensed California attorney.