Can an Attorney Also Serve as a Trustee in California?

Table of Contents

• Key Takeaways
• Understanding Dual Roles in a California Trust
• Legal and Ethical Limitations on Attorney-Trustees
• The Risk of Double Compensation
• Conflicts of Interest and Fiduciary Duty
• Beneficiary Rights and Legal Remedies
• How The Grossman Law Firm Can Help
• Related Resources
• FAQ

Key Takeaways

• In California, an attorney can serve as both trustee and legal advisor of a trust, but doing so requires strict compliance with ethical and fiduciary duties.
• The attorney-trustee cannot receive double compensation for acting as both trustee and attorney, except in limited situations approved by the beneficiaries or the court.
• Any self-dealing, conflicts of interest, or failure to follow the California Rules of Professional Conduct can lead to litigation and personal liability.
• Beneficiaries who suspect misconduct by an attorney-trustee should speak with a California trust litigation attorney immediately.

Understanding Dual Roles in a California Trust

It’s not uncommon for families to appoint a trusted attorney to serve as both trustee and legal advisor of a California trust. It can make sense when the attorney has long advised the family or drafted the trust instrument.

However, combining these two roles — trustee and attorney for the trust — comes with heightened legal and ethical responsibilities. The attorney must always act in the best interests of the beneficiaries and comply with both:

• The California Probate Code governs the fiduciary duties of trustees.
• The California Rules of Professional Conduct govern the ethical obligations of attorneys.

If either standard is violated, beneficiaries have the right to challenge the attorney’s conduct in probate court.

Legal and Ethical Limitations on Attorney-Trustees

When an attorney serves as both trustee and legal counsel, the overlap can create potential conflicts of interest. To stay compliant with California law, the attorney-trustee must:

1. Act in the Best Interest of the Trust
2. The trustee must administer the trust solely for the benefit of the beneficiaries—not for personal gain or convenience.
3. Avoid Conflicts of Interest
4. The attorney-trustee cannot represent themselves against the interests of the beneficiaries. Any dual role must be disclosed fully and consented to in writing.
5. Comply with the California Rules of Professional Conduct
6. These rules prohibit self-dealing and require the attorney to obtain informed written consent if a conflict of interest may arise.
7. Follow California Probate Code §§16000–16015
8. These sections outline a trustee’s duties of loyalty, impartiality, and prudence—standards that also apply to attorney-trustees.

Failure to follow these rules can result in removal as trustee, surcharge (financial penalty), or disciplinary action by the State Bar.

The Risk of Double Compensation

A common issue arises when an attorney-trustee seeks to be paid for both roles. Under California Probate Code §15687, a trustee who is also an attorney cannot receive double compensation—meaning they can’t charge both trustee’s fees and attorney’s fees—unless:

• The trust instrument expressly authorizes both types of compensation, and
• The beneficiaries give informed written consent, or
• The probate court approves the arrangement in advance.

If an attorney-trustee violates this rule, beneficiaries may seek to recover excessive fees and hold the trustee personally liable for the overpayment.

Conflicts of Interest and Fiduciary Duty

The attorney-trustee must carefully separate their legal and fiduciary roles. For example, suppose the trustee hires their own law firm to represent the trust. In that case, it must be done transparently, at reasonable cost, and with full disclosure to all beneficiaries.

Even if the trust document contains language excusing specific actions (known as “exculpatory clauses”), these clauses do not shield a trustee from liability for bad faith, fraud, or gross negligence.

In short, an attorney-trustee cannot use their legal expertise to benefit themselves at the expense of the beneficiaries.

Beneficiary Rights and Legal Remedies

If you’re a beneficiary and believe an attorney-trustee has overstepped their role, you have legal options. You may be able to:

• Demand an accounting under California Probate Code §16062.
• Challenge excessive fees or improper self-dealing transactions.
• Petition for removal of the trustee under §15642 if there’s a conflict of interest or breach of duty.
• Seek surcharge damages to recover losses caused by the trustee’s misconduct.

Because these cases involve both trust law and attorney ethics, having an experienced California trust litigation attorney is essential.

How The Grossman Law Firm Can Help

For over 20 years, The Grossman Law Firm has represented beneficiaries and heirs across California in complex trust and probate litigation. Attorney Scott Grossman and his team handle disputes involving:

• Attorney-trustees who violate their fiduciary duties
• Excessive or unauthorized compensation
• Conflicts of interest and misuse of trust assets
• Petitions for trustee removal or surcharge

Our firm focuses exclusively on California probate and trust litigation, never on estate planning. If you believe your trustee has misbehaved, we can help you enforce your rights under the California Probate Code.

Call (888) 443-6590 or fill out our Get Help Now form.

Our Intake Specialists can evaluate your case to assess your situation at no cost to you. Qualifying cases will be scheduled for a Free Phone Consultation with Attorney Scott Grossman.

Related Resources

• Irrevocable Trust Beneficiary Rights in California?
• Can a Trustee Be Removed for Mishandling Assets?
• Do Beneficiaries Have to Pay Taxes?
• 20 Ways Your Trustee Can Be Breaching Their Fiduciary Duties
• Can’t Afford a Probate or Trust Attorney?

FAQ

Can an attorney serve as trustee and attorney for the same trust?

Yes, but only if the attorney fully discloses the dual role and complies with California’s ethical and fiduciary requirements.

Can an attorney-trustee charge both legal fees and trustee fees?

Generally, no. California Probate Code § 15687 prohibits double compensation unless approved by the beneficiaries or the court.

What happens if an attorney-trustee violates these rules?

The court may remove the trustee, order repayment of fees, or impose personal liability for damages to the trust.

Can beneficiaries challenge an attorney-trustee’s fees?

Absolutely. Beneficiaries have the right to demand an accounting and contest unreasonable or unauthorized compensation in probate court.

Originally Published Apr 10, 2018