Trustees have specific duties responsibilities as defined by the trust document and the California Probate Code . Inexperienced trustees often make errors in the handling of estate affairs and, while not all mistakes will subject a trustee to removal, some conduct , including mismanagement of trust assets and failure to make timely distributions to beneficiaries, hostility or lack of cooperation among co-trustees, a trustee’s failure or declination to act, and payment of excessive compensation by the trust for the trustee’s services, will subject the trustee to removal by court action.

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 document will often reveal which avenues for removal are available, prior to filing a petition to remove the trustee in court.

Trustees who are subject to removal due to breaches of their fiduciary duties are likely also subject to surcharges or legal penalties under the Probate Code to correct the damage caused to the trust by the rogue trustee.          

When a trustee breaches his or her fiduciary duty, causing financial damage to the trust, trust beneficiaries are entitled to bring an action against the trustee for “surcharge.” The trustee is required to “pay back” the trust for the damage caused by a breach of fiduciary duty.  A surcharge will require the rogue trustee to repay  the missing lost or stolen trust  funds. A trustee may be surcharged for fees, expenses, or other expenses incurred.

Beneficiaries of a trust who suspect  trustee misconduct should take immediate action to ensure that their interest in the trust is protected.