Trustee Removal

I'm Keith Davidson at Albertson and

Davidson today I want to talk to you

about trustee removal and it's important

to understand how you have to go about

trying to remove a trustee it's no easy

task but let's say you've come into my

office and you've asked me how do I go

about removing a trustee I have a

trustee of my trust and for whatever

whatever reason they're not managing it

properly so maybe they're not investing

right maybe they're not making

distributions to the beneficiaries when

they should maybe they're spending trust

assets on themselves it's any number of

things and so the question is how do we

go about removing the trustee and

basically in order to remove a trustee

in most instances you're going to have

to go to court and seek the courts help

now there are times when a trust

document will give somebody the power to

remove a trustee and that's important

little footnote here so the first thing

you want to do is look at your trust

because if it gives the beneficiary or

somebody else the power to change the

trustee or remove and replace then

you're going to want to exercise that

that obviously is the very easy way to

go but most trusts do not have that

power and so most of the time the

beneficiaries are stuck having to appeal

go to the court and that means filing a

petition to remove the trustee and

there's two things you can ask the court

for you can ask that the trustee be

removed but a removal petition does take

a trial so that unless unless you reach

a settlement you do have to take that

issue all the way to trial while that

matter is pending in court and it will

take some time you can also ask the

court to suspend the trustee so it's

just an interim temporary suspension the

trustee would be removed just for a

temporary period of time until the

removal is determined and some other

party would be appointed usually it's a

neutral third party like a corporate

trustee or a private trustee a

professional but somebody would be

appointed to oversee the trust during

that time

the basis for removal there actually are

quite a few of them if you look in the

probate code and it can be as simple as

a trustee failing to account it can be a

trustee breaching their duties it can be

a trustee creating hostility there's

quite a few bases but what you find if

you do this for a while like we have is

that a lot of judges will not pull the

trigger and actually remove a trustee

unless they really feel compelled to do

that and so it might be true that under

the probate code the court has the

discretion to remove a trustee if they

didn't account most of the time Korn

courts are not going to do that and just

a simple lack of accounting is not going

to get a trustee removed because the

court can just order them to account and

then at that point the trustee accounts

so really what you need is one of two

things you either need something that's

really bad by really bad I mean a

trustee stealing money and you have

proof of it so they're just taking money

right out the door into their own pocket

or you have to have what we call death

by a thousand lashes so that's where you

kind of stack up all the things that

they've done there may not be any one

thing that's huge they haven't actually

taken money there they're not embezzling

or anything like that but if you just

stack up all the things that they've

done they've breached here they haven't

invested right they haven't made

distributions or creating hostility and

you layer those together and once you

have enough of them then you may be

successful in persuading a judge that

this trustee should be removed but it's

not an easy course to take unfortunately

in some situations you have no choice

you have to try and get a trustee

removed especially if it's a bad trustee

but you should know going into it that

you are facing an uphill battle and so

you have to line up the evidence and the

facts properly if you're going to be

successful in trying to get rid of that

bad trustee