Removing parent's trust attorney as trustee

Some trust attorneys think it is appropriate for them to serve as trustee or co-trustee of their clients' trusts after their clients have died. The California Probate Code provides a way of removing those attorneys from their role as successor trustee. Beneficiaries who find themselves dealing with their parent's attorney are often wise to seek the attorney's removal. Attorneys who do this know, or ought to know, this type of conduct is disfavored by the California law, reeks of undue influence, and may tell you something about that attorney's ethics.

My client, "Lisa," was supposed to inherit a substantial amount of money from her father's trust. Eight months before her father passed away, and while he was afflicted with dementia, he had his attorney change his trust so that Lisa would receive considerably less money and a charity would receive the remainder when Lisa died. Lisa was irate her father's trust attorney would change his trust when he was so obviously impaired. She was even angrier his attorney would serve as successor trustee.

During her father's final months he was incapable of managing his financial affairs so his trustee, his lawyer, took charge. He charged for the work he did as trustee at the same rate as his legal fees. And he did a lot of work. He charged tens of thousands of dollars for his work. Lisa could see he would charge even more over the coming years. Her father's attorney had effectively given himself an annuity at her expense.

Lisa decided to have us file a petition with the probate court seeking to remove the trustee. Lisa had some powerful tools on her side. First, the California Probate Code creates a presumption that an attorney who drafts a trust and serves as trustee is presumed to be prohibited from serving in as trustee. Second, an attorney who defends his removal in bad faith can be made to pay the attorney's fees and costs for the suit to remove him.

Under these circumstances most drafting attorneys have little incentive to defend a petition to remove them. They usually, after the petition to remove them has been filed, find a way and an excuse to resign as trustee. Once they do the problem is solved as a successor trustee will then take over the administration of the trust.

The Grossman Law Firm, A.P.C. are Riverside, California probate lawyers.  We help probate estates in Riverside County, California.  We appear in the Riverside probate court for cases in the area bounded by Temecula, Corona, and Banning, California.  We appear in the Palm Springs/Indio probate court for cases from Palm Springs, Palm Desert, Rancho Mirage, Desert Hot Springs, Cathedral City, Indian Wells, and Indio, California.  If you  would like more information on probate and trust administration then order our free book The Insider's Guide to California Probate and Trust Administration as well as our free DVD Probate a Will or Administer a Trust After the Death of a Loved One.