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I am a co-trustee of an estate. The other co-trustee has ...

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I am a co-trustee of an estate. The other co-trustee has refused to deposit a check in a bank which belongs to the trust. Numerous efforts have been made to resolve the matter.
Submitted: 6 years ago.
Category: Criminal Law
Expert:  CALawyer replied 6 years ago.
What state is this in?

Does the other co-trustee still have the check?

Is there some reason why he won't deposit it? What is that?
Customer: replied 6 years ago.
Question: If a co-trustee refuses to deposit a check which belongs to the trust, and makes demands on the co-trustee which are objectionable, is there an action that can be taken against the co-trustee that holds the check.
Customer: replied 6 years ago.
The other trustee has had the check for approximately 4 months.

The location is Los Altos, California, Santa Clara County.
Expert:  CALawyer replied 6 years ago.
Yes. You could file a probate petition with the Courts to instruct the co-trustee to sign the check and turn it over to the trust. The relevant probate code section is 17200 and is provided in full below:

Prob Code § 17200. Petition by Trustee or Beneficiary Concerning Trust Existence or Internal Affairs

(a) Except as provided in Section 15800, a trustee or beneficiary of a trust may petition the court under this chapter concerning the internal affairs of the trust or to determine the existence of the trust.

(b) Proceedings concerning the internal affairs of a trust include, but are not limited to, proceedings for any of the following purposes:

(1) Determining questions of construction of a trust instrument.

(2) Determining the existence or nonexistence of any immunity, power, privilege, duty, or right.

(3) Determining the validity of a trust provision.

(4) Ascertaining beneficiaries and determining to whom property shall pass or be delivered upon final or partial termination of the trust, to the extent the determination is not made by the trust instrument.

(5) Settling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers.

(6) Instructing the trustee.

(7) Compelling the trustee to report information about the trust or account to the beneficiary, if (A) the trustee has failed to submit a requested report or account within 60 days after written request of the beneficiary and (B) no report or account has been made within six months preceding the request.

(8) Granting powers to the trustee.

(9) Fixing or allowing payment of the trustee's compensation or reviewing the reasonableness of the trustee's compensation.

(10) Appointing or removing a trustee.

(11) Accepting the resignation of a trustee.

(12) Compelling redress of a breach of the trust by any available remedy.

(13) Approving or directing the modification or termination of the trust.

(14) Approving or directing the combination or division of trusts.

(15) Amending or conforming the trust instrument in the manner required to qualify a decedent's estate for the charitable estate tax deduction under federal law, including the addition of mandatory governing instrument requirements for a charitable remainder trust as required by final regulations and rulings of the United States Internal Revenue Service.

(16) Authorizing or directing transfer of a trust or trust property to or from another jurisdiction.

(17) Directing transfer of a testamentary trust subject to continuing court jurisdiction from one county to another.

(18) Approving removal of a testamentary trust from continuing court jurisdiction.

(19) Reforming or excusing compliance with the governing instrument of an organization pursuant to Section 16105.

(20) Determining the liability of the trust for any debts of a deceased settlor. However, nothing in this paragraph shall provide standing to bring an action concerning the internal affairs of the trust to a person whose only claim to the assets of the decedent is as a creditor.

(21) Determining petitions filed pursuant to Section 15687 and reviewing the reasonableness of compensation for legal services authorized under that section. In determining the reasonableness of compensation under this paragraph, the court may consider, together with all other relevant circumstances, whether prior approval was obtained pursuant to Section 15687.

(22) If a member of the State Bar of California has transferred the economic interest of his or her practice to a trustee and if the member is a deceased member under Section 9764, a petition may be brought to appoint a practice administrator. The procedures, including, but not limited to, notice requirements, that apply to the appointment of a practice administrator for a deceased member shall apply to the petition brought under this section.

(23) If a member of the State Bar of California has transferred the economic interest of his or her practice to a trustee and if the member is a disabled member under Section 2468, a petition may be brought to appoint a practice administrator. The procedures, including, but not limited to, notice requirements, that apply to the appointment of a practice administrator for a disabled member shall apply to the petition brought under this section.

(c) The court may, on its own motion, set and give notice of an order to show cause why a trustee should not be removed for failing to register in the Statewide Registry under Section 2850. [Added 1990 ch. 79, optve. July 1, 1991; amended 1991 ch. 992, 1993 ch. 293; 1996 ch. 862, 1997 ch. 724, 1998 ch. 682, 1999 ch. 175, 2003 ch. 629.]


As far as the petition, there aren't any statutory forms or anything, but I could provide you a reference that you could look up at the law library that would have the information and forms which could be modified to meet your needs. Just let me know if you would like that, or alternatively, you could hire an attorney to handle the matter for you.




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Customer: replied 6 years ago.
The co-trustee has brought an action to remove me as co-trustee in San Jose Probate Court. What I'm afraid of is that the court will take the easy way out - turn the trust over to a third party. The trust was established by the woman I loved, admired,that saved my life, and this is the last act of love I can do for her. The co-trustee was appointed to help since I suffer from some 3 tours as a fighter pilot in Viet Nam.

Could I pursue an action in the criminal sense?

I could pay you now if you wish before I complete my questions.
Expert:  CALawyer replied 6 years ago.
Well, we only want you to pay when you are satisfied.

As far as a criminal action, none of the facts you've described would constitute a reason for a criminal action.

With regard to the petition to remove you as co-trustee, you could oppose that petition. You may also file a petition to remove him as co-trustee.

As far as removal of the trustee, the statutory grounds are as follows:
  • Breach of trust

  • Insolvency or unfitness to administer

  • Hostility or non-cooperation among cotrustees (ie., this could be a grounds for removing the other co-trustee).

  • Failure to act (ie. failing to cash the check).

  • Excessive trustee compensation under the circumstances.

  • Inability to manage the trust or act as trustee.

  • Inability to resist fraud or undue influence; or

  • Other good cause.



If this information was helpful, please click ACCEPT to give me credit for answering. Bonuses and positive feedback are appreciated if deserved. If you need any clarification, just post a reply. Thanks!
CALawyer, Lawyer
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