Trustee Under Suspicion? Securing Your Trust During Removal Litigation in California

Deciding to pursue the Removal of a Trustee is a significant step, usually born from serious concerns about mismanagement, breach of fiduciary duty, or other misconduct. But filing the Petition in Probate Court is often just the beginning of a legal process. A critical question arises: What happens to the trust assets while the litigation is ongoing? Can a beneficiary prevent a trustee they believe is harmful from continuing to control funds, potentially using them to fight the removal action or causing further damage?

Fortunately, California law recognizes this risk and provides tools for beneficiaries (and co-trustees or other interested persons with standing) to seek immediate, interim protection from the court while a removal action is pending. You don’t have to stand by helplessly.

Deciding to pursue the Removal of a Trustee is a significant step, usually born from serious concerns about mismanagement, breach of fiduciary duty, or other misconduct. But filing the Petition in Probate Court is often just the beginning of a legal process. A critical question arises: What happens to the trust assets while the litigation is ongoing? Can a beneficiary prevent a trustee they believe is harmful from continuing to control funds, potentially using them to fight the removal action or causing further damage?

Fortunately, California law recognizes this risk and provides tools for beneficiaries (and co-trustees or other interested persons with standing) to seek immediate, interim protection from the court while a removal action is pending. You don’t have to stand by helplessly.

Trust litigation can take months or even years to resolve. During that time, a trustee facing removal allegations typically retains control over trust assets and administration. This creates obvious risks:

• Use of Trust Funds for Defense: The trustee might use trust funds to pay attorneys to defend against the removal action – potentially draining assets meant for beneficiaries.
• Continued Mismanagement: If the alleged breach involves ongoing harmful conduct (e.g., poor investments, self-dealing), allowing the trustee to remain in full control invites further damage.
• Obstruction: A hostile trustee might impede the litigation process or refuse reasonable requests while still in power.

Trust litigation can take months or even years to resolve. During that time, a trustee facing removal allegations typically retains control over trust assets and administration. This creates obvious risks:

• Use of Trust Funds for Defense: The trustee might use trust funds to pay attorneys to defend against the removal action – potentially draining assets meant for beneficiaries.
• Continued Mismanagement: If the alleged breach involves ongoing harmful conduct (e.g., poor investments, self-dealing), allowing the trustee to remain in full control invites further damage.
• Obstruction: A hostile trustee might impede the litigation process or refuse reasonable requests while still in power.

California Probate Courts possess broad authority to protect trusts and beneficiaries during litigation. Under Probate Code § 17206 and § 15642(e), and leveraging inherent equitable powers, the court can issue several types of protective orders pending a final decision on removal:

1. Suspension of Trustee Powers: This is often the most impactful interim remedy. The court can order the Suspension of the Trustee, temporarily stripping them of some or all of their powers to act on behalf of the trust. Crucially, suspension can sometimes be granted based on a showing that it’s in the beneficiaries’ best interests, potentially even before a final finding of wrongdoing is made (see Schwartz v. Labow). Strategically, this limits the trustee’s access to trust funds for their defense and signals the court’s preliminary concerns.
2. Appointment of a Temporary Trustee or Trustee Ad Litem: If a trustee is suspended, who manages the trust? The court has the power to appoint an interim fiduciary – often called a Temporary Trustee – to administer the trust in whole or part while the removal action proceeds (Probate Code § 17206). In the context of managing the litigation itself when the main trustee has a conflict, the court might appoint a Trustee Ad Litem (Getty v. Getty). This ensures necessary administration continues under neutral oversight.
3. Order to Surrender Trust Property: To directly prevent loss or injury, the court can compel the trustee facing removal to surrender specific trust property to a co-trustee, a court-appointed Receiver, or the Temporary Trustee (Probate Code § 15642(e)).

California Probate Courts possess broad authority to protect trusts and beneficiaries during litigation. Under Probate Code § 17206 and § 15642(e), and leveraging inherent equitable powers, the court can issue several types of protective orders pending a final decision on removal:

1. Suspension of Trustee Powers: This is often the most impactful interim remedy. The court can order the Suspension of the Trustee, temporarily stripping them of some or all of their powers to act on behalf of the trust. Crucially, suspension can sometimes be granted based on a showing that it’s in the beneficiaries’ best interests, potentially even before a final finding of wrongdoing is made (see Schwartz v. Labow). Strategically, this limits the trustee’s access to trust funds for their defense and signals the court’s preliminary concerns.
2. Appointment of a Temporary Trustee or Trustee Ad Litem: If a trustee is suspended, who manages the trust? The court has the power to appoint an interim fiduciary – often called a Temporary Trustee – to administer the trust in whole or part while the removal action proceeds (Probate Code § 17206). In the context of managing the litigation itself when the main trustee has a conflict, the court might appoint a Trustee Ad Litem (Getty v. Getty). This ensures necessary administration continues under neutral oversight.
3. Order to Surrender Trust Property: To directly prevent loss or injury, the court can compel the trustee facing removal to surrender specific trust property to a co-trustee, a court-appointed Receiver, or the Temporary Trustee (Probate Code § 15642(e)).

These protective orders are typically requested by filing a motion or, in urgent situations, an Ex Parte application with the Probate Court, either concurrently with or shortly after filing the Petition for Removal. You will need to present clear evidence demonstrating the risk of harm or why suspension/interim appointment is necessary to protect the trust and beneficiaries’ interests pending a final outcome.

These protective orders are typically requested by filing a motion or, in urgent situations, an Ex Parte application with the Probate Court, either concurrently with or shortly after filing the Petition for Removal. You will need to present clear evidence demonstrating the risk of harm or why suspension/interim appointment is necessary to protect the trust and beneficiaries’ interests pending a final outcome.

Seeking interim relief promptly can be critical. It prevents further potential damage, preserves trust assets, levels the playing field by potentially limiting the challenged trustee’s use of trust funds for their defense, and ensures the trust is managed appropriately while the court resolves the underlying removal request.

Seeking interim relief promptly can be critical. It prevents further potential damage, preserves trust assets, levels the playing field by potentially limiting the challenged trustee’s use of trust funds for their defense, and ensures the trust is managed appropriately while the court resolves the underlying removal request.

Navigating a trustee removal action, including securing necessary interim protections, requires skilled legal advocacy. Burrey Law Group is experienced in representing beneficiaries and co-trustees in all phases of trust litigation. We understand the urgency of protecting trust assets and can act swiftly to seek suspension orders, appointment of temporary trustees, and other necessary relief while pursuing the ultimate goal of holding breaching trustees accountable, potentially through surcharge or removal.

If you are involved in a dispute with a trustee and concerned about the safety of trust assets during litigation, contact Burrey Law Group today for a confidential consultation.

Navigating a trustee removal action, including securing necessary interim protections, requires skilled legal advocacy. Burrey Law Group is experienced in representing beneficiaries and co-trustees in all phases of trust litigation. We understand the urgency of protecting trust assets and can act swiftly to seek suspension orders, appointment of temporary trustees, and other necessary relief while pursuing the ultimate goal of holding breaching trustees accountable, potentially through surcharge or removal.

If you are involved in a dispute with a trustee and concerned about the safety of trust assets during litigation, contact Burrey Law Group today for a confidential consultation.