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Category: Estate Law
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Experience:  Texas lawyer for 29 years in Estate law
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My sister & I are co-trustees of an Irrevocable Trust. This

Resolved Question:

My sister & I are co-trustees of an Irrevocable Trust. This Trust has 5 Beneficiaries including my sister & I. Four Beneficiaries live in So CA & the other lives in No CA. This Trust has 3 properties which are managed by the Trustees.

I would like to petition the court to remove my sister as a Trustee due to the fact that she has made decisions which are not in the best interest of all the Beneficiaries. Example:
1) Without my knowledge, she leased a 1200 square foot gated home with an enclosed garage for $400.00 per month, utilities included. These people finally moved . This same house has been rented since 12/1/12 for $1850.00 per month.
2) In April 2012, without my knowledge she attempted to sell all 3 properties. I retained a lawyer to stop this process.
3) On 7/11/2012, she deducted $1540.00 for her personal expenses.

There’s much more information to relate. But, can you please tell me if I can petition the court on my own? Or, do I need the other 5 Beneficiaries approval? Either way, I understand that I would need to file a Petition in Probate Court, correct?

I reside in CA, could you please tell me where I locate this Petition and is a lawyer required? I do have documentation of all 3 of the incidents I stated above.
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Thanks for your questions and good morning.Let's go through them.

Certainly you have the right here to file a civil suit to remove the trustee.California law provides for it.You do not need the consent on any of the others.Here is the law for reference.You can do this yourself but a lawyer might be a great benefit in such a situation.If you had used a local lawyer previously you may want to use them to assist you in filing for removal of the trustee and present your case.

15642. (a) A trustee may be removed in accordance with the trust instrument, by the court on its own motion, or on petition of a settlor, cotrustee, or beneficiary under Section 17200. (b) The grounds for removal of a trustee by the court include the following: (1) Where the trustee has committed a breach of the trust. (2) Where the trustee is insolvent or otherwise unfit to administer the trust. (3) Where hostility or lack of cooperation among cotrustees impairs the administration of the trust. (4) Where the trustee fails or declines to act. (5) Where the trustee's compensation is excessive under the circumstances. (6) Where the sole trustee is a person described in subdivision (a) of Section 21350 or subdivision (a) of Section 21380, whether or not the person is the transferee of a donative transfer by the transferor, unless, based upon any evidence of the intent of the settlor and all other facts and circumstances, which shall be made known to the court, the court finds that it is consistent with the settlor's intent that the trustee continue to serve and that this intent was not the product of fraud or undue influence. Any waiver by the settlor of this provision is against public policy and shall be void. This paragraph shall not apply to instruments that became irrevocable on or before January 1, 1994. This paragraph shall not apply if any of the following conditions are met: (A) The settlor is related by blood or marriage to, or is a cohabitant with, any one or more of the trustees, the person who drafted or transcribed the instrument, or the person who caused the instrument to be transcribed. (B) The instrument is reviewed by an independent attorney who (1) counsels the settlor about the nature of his or her intended trustee designation and (2) signs and delivers to the settlor and the designated trustee a certificate in substantially the following form: "CERTIFICATE OF INDEPENDENT REVIEW I, ___________________ , have reviewed (attorney's name) ______________________ and have counseled my (name of instrument) client, __________________ , fully and privately on the (name of client) nature and legal effect of the designation as trustee of ___________________ (name of trustee) contained in that instrument. I am so disassociated from the interest of the person named as trustee as to be in a position to advise my client impartially and confidentially as to the consequences of the designation. On the basis of this counsel, I conclude that the designation of a person who would otherwise be subject to removal under paragraph (6) of subdivision (b) of Section 15642 of the Probate Code is clearly the settlor's intent and thatintent is not the product of fraud, menace, duress, or undue influence. ____________________ ________________ " (Name of Attorney) (Date) This independent review and certification may occur either before or after the instrument has been executed, and if it occurs after the date of execution, the named trustee shall not be subject to removal under this paragraph. Any attorney whose written engagement signed by the client is expressly limited to the preparation of a certificate under this subdivision, including the prior counseling, shall not be considered to otherwise represent the client. (C) After full disclosure of the relationships of the persons involved, the instrument is approved pursuant to an order under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division 4. (7) If, as determined under Part 17 (commencing with Section 810) of Division 2, the trustee is substantially unable to manage the trust's financial resources or is otherwise substantially unable to execute properly the duties of the office. When the trustee holds the power to revoke the trust, substantial inability to manage the trust' s financial resources or otherwise execute properly the duties of the office may not be proved solely by isolated incidents of negligence or improvidence. (8) If the trustee is substantially unable to resist fraud or undue influence. When the trustee holds the power to revoke the trust, substantial inability to resist fraud or undue influence may not be proved solely by isolated incidents of negligence or improvidence. (9) For other good cause. (c) If, pursuant to paragraph (6) of subdivision (b), the court finds that the designation of the trustee was not consistent with the intent of the settlor or was the product of fraud or undue influence, the person being removed as trustee shall bear all costs of the proceeding, including reasonable attorney's fees. (d) If the court finds that the petition for removal of the trustee was filed in bad faith and that removal would be contrary to the settlor's intent, the court may order that the person or persons seeking the removal of the trustee bear all or any part of the costs of the proceeding, including reasonable attorney's fees. (e) If it appears to the court that trust property or the interests of a beneficiary may suffer loss or injury pending a decision on a petition for removal of a trustee and any appellate review, the court may, on its own motion or on petition of a cotrustee or beneficiary, compel the trustee whose removal is sought to surrender trust property to a cotrustee or to a receiver or temporary trustee. The court may also suspend the powers of the trustee to the extent the court deems necessary. (f) For purposes of this section, the term "related by blood or marriage" shall include persons within the seventh degree.


You would file your petition here and serve the other parties here.You would contact the court clerk where it is assigned and seek to have it set for hearing on the merits.


I appreciate the chance to assist you today.Please let me know if you have more follow up.Thanks again.

 

 

Here is a sample petition, you may want to check with your county to see if they have a county specific one.Your lawyer can also hand draft one for your specific facts.You appear to have some great ones to present in such a proceeding.I can see that this has been really frustrating for you here.

 

http://forms.justia.com/california/local-county/santa-clara/probate/petition-to-remove-trustee-41473.html

 

I wish you the best.

 

 

 

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This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

Expert:  RayAnswers replied 1 year ago.
Here is a short video on trustee removal.


http://www.youtube.com/watch?v=iKQ2Iog_js4

This would help you in filing your petition..
Expert:  RayAnswers replied 1 year ago.
I appreciate the chance to help, let me know if you have more follow up, thanks..
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 29269
Experience: Texas lawyer for 29 years in Estate law
RayAnswers and 3 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Hello,


 


Just want to confirm a couple things:


1) I would file a Petition withthe court, in this case Orange County, CA whee the Trust is located and where we reside. What is the exact name of this Petition. Do you know if its available on-line?


 


2) I do not require the approvalof the other 3 Benficiaries, right?


 

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