When a Trustee Is Not Following the Trust: California Law Explained

When a California trustee is not following the trust, a beneficiary can ask the Superior Court to step in. A trustee must administer the trust by its terms and by California law, and a court can order the trustee to act, account, repay losses, or step aside, depending on what the trustee did and what the facts show.

Most people facing this question are a beneficiary, an heir or a family member watching something that does not match what a parent or relative wrote down. A distribution that was supposed to happen has not. Calls and emails to the trustee go unanswered, or the trustee, often a sibling, says the money is "being handled" without saying how. Some readers are trustees themselves, accused of not doing their job and trying to understand what the law actually asks of them. Either way, the question underneath is the same: what does California require of a trustee, and what can be done when those requirements are not met?

This page walks through the duties a California trustee owes, what falling short of them tends to look like, the court petitions beneficiaries can bring, the remedies a court may order, how removal works, and the time limits that apply. It describes what the law allows each side to do. It does not assume that any trustee has, or has not, done anything wrong.

What It Means for a Trustee to Follow the Trust Under California Law

Probate Code section 16000 sets the starting rule: "On acceptance of the trust, the trustee has a duty to administer the trust according to the trust instrument and, except to the extent the trust instrument provides otherwise, according to this division."

A few terms first. The settlor is the person who created the trust and put property into it. The trustee is the person or institution who holds and manages that property for others. A beneficiary is someone entitled to receive something from the trust, now or later. The trust instrument is the written document, along with any valid amendments, that sets out the settlor's instructions.

"Following the trust" therefore has two layers. The first is the instrument itself: who gets what, when, on what conditions, and with what powers given to the trustee. The second is the set of duties the California Probate Code places on trustees, which apply alongside the document. The instrument can adjust some of those duties, but section 16000 makes clear that the statutory framework governs wherever the instrument does not say otherwise, and some protections cannot be written away at all.

That two-layer structure matters in a dispute. A trustee can be faithful to the literal words of the document and still breach a statutory duty, for example by keeping beneficiaries in the dark. A trustee can also ignore a clear instruction in the document while pointing to general powers. Both kinds of failure fall within California trust litigation.

Disputes over how a trust is being run belong to the court. Under Probate Code section 17200(a), a trustee or beneficiary may generally petition the court "concerning the internal affairs of the trust or to determine the existence of the trust," subject to an exception in section 15800. Those petitions are heard by the Superior Court of California for the county where the trust is administered.

A separate question, whether the trust or an amendment is valid in the first place, is a matter of contesting a trust, which follows its own rules and deadlines.

The Duties a Trustee Owes to Beneficiaries

Three groups of duties come up again and again when a California trustee is accused of not following the trust: loyalty, information and accounting. Compensation is a fourth issue that often travels with them.

The duty of loyalty. Probate Code section 16004(a) says the trustee "has a duty not to use or deal with trust property for the trustee's own profit or for any other purpose unconnected with the trust, nor to take part in any transaction in which the trustee has an interest adverse to the beneficiary." In plain terms, the trust's property is not the trustee's to use, and the trustee cannot sit on both sides of a deal involving it. Using trust property for personal gain is often called self-dealing.

Section 16004(c) adds a presumption. A transaction between the trustee and a beneficiary, during the trust or while the trustee's influence over the beneficiary remains, by which the trustee obtains an advantage from that beneficiary, is presumed to violate the trustee's fiduciary duties. This is a presumption affecting the burden of proof, which means the trustee, not the beneficiary, generally has to show the transaction was fair. The presumption does not apply to the parts of an agreement between a trustee and a beneficiary about hiring or paying the trustee.

The duty to keep beneficiaries informed. Under Probate Code section 16060, the trustee must keep the beneficiaries "reasonably informed of the trust and its administration." This is an ongoing, general duty; it does not wait for someone to ask.

The duty to report on request. Probate Code section 16061 adds a specific obligation: except as section 16069 provides, on reasonable request by a beneficiary, the trustee must provide requested information about the trust's administration that is relevant to that beneficiary's interest.

The duty to account. An account is a formal financial report showing what the trust held, what came in, what went out, and what remains. Probate Code section 16062(a) requires the trustee, except as that section and section 16064 provide, to account at least annually, at the termination of the trust, and upon a change of trustee. That duty runs to each beneficiary to whom income or principal is required, or authorized in the trustee's discretion, to be currently distributed. Not every beneficiary is owed an annual account. Someone who only inherits after a parent's lifetime, for instance, may fall outside that group while the earlier beneficiary is alive. The statute also exempts certain older trusts executed before July 1, 1987.

A waiver is not always the end of the matter. Even where a trust instrument or a beneficiary's writing waives the account, California law allows the court to compel the trustee to account upon a showing that it is reasonably likely a material breach of the trust has occurred. And section 16062(e) makes a waiver void as to certain sole trustees described in the statute.

Compensation. If the trust instrument does not set the trustee's pay, Probate Code section 15681 entitles the trustee to "reasonable compensation under the circumstances." A trustee may not charge an increased fee without first giving at least 60 days' written notice to the beneficiaries section 15686(b) lists: each beneficiary entitled to an account under section 16062, each beneficiary who received the last preceding account, and each beneficiary who has asked in writing for notice of fee increases and given an address. Under section 15686(c), if a beneficiary files a section 17200 petition to review the increase or remove the trustee and serves it on the trustee before the 60 days run out, the increase does not take effect until the court orders otherwise or the petition is dismissed.

Common Ways a Trustee May Fail to Follow the Trust

Non-compliance rarely announces itself. It usually shows up as a gap between what the documents say and what is actually happening. The patterns below are drawn from the duties just described; they are descriptions of conduct the law addresses, not accusations against any particular trustee.

Ignoring the trust's distribution terms. The instrument may say a beneficiary receives a share at a certain age, on a certain event, or in set installments. A trustee who does not make required distributions, applies conditions the document does not contain, or treats a mandatory gift as optional is not administering the trust "according to the trust instrument" under section 16000.

Refusing information or the trust document. A beneficiary who asks in writing for a copy of the trust, a list of assets, or an explanation of a transaction, and hears nothing, may be facing a breach of the reporting duty in section 16061, subject to its exceptions.

Not accounting when an account is owed. A trustee who never accounts to a current beneficiary entitled to one under section 16062, or who ignores a written request for an account, opens the door to a petition to compel discussed in the next section.

Self-dealing. Living in a trust house without paying rent, borrowing from trust accounts, buying trust property at a favorable price, steering trust business to a company the trustee owns, or mixing trust money with personal money are the kinds of conduct section 16004(a) addresses.

Raising fees without notice. A trustee who starts taking a larger fee without the 60-day written notice section 15686(b) requires is acting outside the statute.

None of this is a complete list. The trust instrument and the full set of California statutory duties together define what compliance requires, and conduct outside these examples can still be a breach. For a reader trying to make sense of a stalled distribution or a silent sibling, the useful question is usually which specific term or duty the conduct runs against.

How Beneficiaries Can Compel a Trustee to Act: Petitions and Court Orders

The main court tool is a petition under Probate Code section 17200. As noted above, section 17200(a) allows a trustee or beneficiary, subject to section 15800, to ask the court to resolve matters about the trust's internal affairs. Section 17200(b) lists proceedings that qualify and says they "include, but are not limited to" those on the list. Among the listed purposes most relevant here are:

• determining questions of construction of the trust instrument, meaning what its words mean;
• settling the accounts and passing upon the acts of the trustee, including discretionary decisions;
• instructing the trustee;
• compelling the trustee to provide a copy of the terms of the trust, to provide information, or to account;
• fixing or reviewing the reasonableness of the trustee's compensation;
• appointing or removing a trustee; and
• compelling redress of a breach of the trust by any available remedy.

Section 17200(b)(7) sets specific conditions for two common petitions. A petition to compel information under section 16061 is available if the trustee has failed to provide the requested information within 60 days after the beneficiary's reasonable written request, and the beneficiary has not received the requested information from the trustee within the six months before the request. A petition to compel an account is available, subject to section 16064, if the trustee has failed to submit a requested account within 60 days after the beneficiary's written request and no account has been made within the six months before the request. Both depend on a written request, which is why the date and content of that request often become important facts.

Once a petition is before it, the court has broad authority. Probate Code section 17206 provides that the court "in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition, including appointment of a temporary trustee to administer the trust in whole or in part."

These petitions are filed in the Superior Court of California for the county where the trust is administered. More detail on who may file and how the process unfolds appears in the overview of the Probate Code 17200 petition.

Breach of Trust Remedies Under California Law

A breach of trust is any violation of a duty the trustee owes, whether it comes from the trust instrument or from statute. Probate Code section 16420(a) provides that if a trustee commits a breach of trust, or threatens to commit one, a beneficiary or cotrustee may bring a proceeding for any of the following purposes that is appropriate:

• to compel the trustee to perform the trustee's duties;
• to enjoin, meaning to order a stop to, a breach of trust;
• to compel the trustee to redress a breach by payment of money or otherwise;
• to appoint a receiver or temporary trustee to take possession of and administer the trust property;
• to remove the trustee;
• subject to section 18100, to set aside acts of the trustee;
• to reduce or deny the trustee's compensation;
• subject to section 18100, to impose an equitable lien or a constructive trust on trust property; and
• subject to section 18100, to trace trust property that has been wrongfully disposed of and recover the property or its proceeds.

A constructive trust is a court order treating specific property as held for the rightful owner, and an equitable lien is a court-imposed claim against property. Section 16420(b) adds that these remedies "do[] not prevent resort to any other appropriate remedy provided by statute or the common law."

Surcharge. A surcharge is a court order that the trustee personally pay money to make the trust whole. Probate Code section 16440(a) makes a breaching trustee chargeable with whichever of the following is appropriate under the circumstances: any loss or depreciation in value of the trust estate resulting from the breach, with interest; any profit the trustee made through the breach, with interest; or any profit that would have accrued to the trust estate if the loss of profit resulted from the breach. Surcharge is not automatic. Under section 16440(b), if the trustee acted reasonably and in good faith under the circumstances as known to the trustee, the court in its discretion may excuse the trustee in whole or in part if it would be equitable to do so. For a trustee facing these claims, that subdivision is often central.

Double liability under section 859. Probate Code section 859 applies if a court finds that a person has in bad faith wrongfully taken, concealed or disposed of property belonging to a trust or a decedent's estate (among others), or has taken, concealed or disposed of it by the use of undue influence in bad faith, or through elder or dependent adult financial abuse as defined in California law. A person the court finds liable on that basis is liable for twice the value of the property recovered by an action under that part of the Probate Code. In addition, except as otherwise required by law, that person may, in the court's discretion, be liable for reasonable attorney's fees and costs. Neither the doubled amount nor fees follow from a dispute alone; the court must first make the finding the statute describes, and fees remain discretionary.

Removing a Trustee Who Will Not Follow the Trust

Probate Code section 15642(a) sets out three routes to removal: 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.

The grounds for court removal in section 15642(b) include:

• the trustee has committed a breach of the trust;
• the trustee is insolvent or otherwise unfit to administer the trust;
• hostility or lack of cooperation among cotrustees impairs the administration of the trust;
• the trustee fails or declines to act; and
• the trustee's compensation is excessive under the circumstances.

That list is partial; the statute contains a further ground tied to certain sole trustees, and removal is also one of the remedies section 16420(a) makes available for a breach.

Removal by the court is a court order. A beneficiary who believes a trustee should no longer serve cannot simply declare the trustee removed or take over the accounts; unless the trust instrument itself provides a removal method, the change comes through the court. For families where a sibling-trustee and the other siblings have stopped speaking, this can feel slow, but it also means a judge, rather than whoever acts first, decides who controls the property.

While a removal petition is pending, the court's power under section 17206 to appoint a temporary trustee to administer the trust in whole or in part can matter a great deal, particularly where assets such as a house, a business or investment accounts need someone managing them in the meantime.

The Statute of Limitations for Breach of Trust Claims in California

Probate Code section 16460(a) sets two time limits, and which one applies depends on what the beneficiary received from the trustee. Both run for three years, but from different starting points.

When a written account or report discloses the claim. If a beneficiary has received an interim or final account in writing, or another written report, that adequately discloses the existence of a claim against the trustee for breach of trust, the claim is barred as to that beneficiary unless a proceeding is commenced within three years after receipt of the account or report. The statute says a report "adequately discloses" a claim if it gives enough information that the beneficiary knows of the claim or reasonably should have inquired into it.

When no written account or report discloses it. If the account or report does not adequately disclose the claim, or the beneficiary never received any written account or report, the claim is barred unless a proceeding is commenced within three years after the beneficiary discovered, or reasonably should have discovered, the subject of the claim.

Section 16460(b) explains when an account counts as received, including special rules for adults not reasonably capable of understanding it and for minors. Both branches are subject to the statute's opening words: a claim already barred by adjudication, consent, limitation or otherwise stays barred.

Because the start date depends on what was received and what it said, the accounts and reports a trustee sent, and when they arrived, are usually among the first documents examined.

If You Would Like to Talk Through a Trustee Dispute

A trustee dispute usually turns on paper: the trust instrument and every amendment, any accounts or reports the trustee sent and the dates they arrived, written requests for information or an account and whatever response came back, and records of distributions, fee changes and transactions involving trust property. An attorney looking at a matter like this would typically start with those documents and the timeline they form, because they determine which duty is at issue, which petition fits, and which of the two time limits in section 16460 applies. This page is written for people already in a disagreement with a trustee, or for trustees facing one; readers whose family simply has questions about an uncontested trust may find a different starting point more useful. For a broader overview of how these cases proceed, see the guide to California trust litigation.

To discuss a dispute like this with an attorney, contact California Trust Litigation Lawyers to request a consultation about your dispute.