When co-trustees are named in a California trust, they are expected to act together and in the best interests of all beneficiaries. When one trustee dies, and the other continues alone, those duties do not change.
If anything, the remaining trustee’s responsibility becomes more significant.
At The Grossman Law Firm, Attorney Scott Grossman represents beneficiaries across California in situations where a surviving trustee takes control and fails to properly manage or account for trust assets.
What Happens When a Trustee Passes?
It is common for parents to name their children as co-trustees.
When one co-trustee passes away, the surviving trustee typically continues as the acting trustee. However, that does not give them freedom to act without oversight.
Under the California Probate Code, the remaining trustee must:
- Continue administering the trust according to its terms.
- Treat all beneficiaries fairly.
- Keep beneficiaries informed.
- Preserve trust assets.
- Provide an accounting upon reasonable request.
The role does not become informal. It becomes more scrutinized.
A Real-World Example: When a Surviving Trustee Takes Control
James and Eleanor Whitaker created an A/B trust in 2010. They had two sons, Paul Whitaker and Walt Whitaker, who were half-brothers. Under the trust, after the first spouse’s death, the estate would split into separate sub-trusts, with both sons ultimately entitled to equal shares.
James passed away in 2016. At that point, the trust split into its A/B structure. Eleanor continued to manage the assets as a surviving trustee.
Eleanor passed away in February 2019. After her death, Paul and Walt became co-trustees, responsible for administering both sub-trusts and distributing the remaining assets.
The trust held several assets, including the family home in Orange County valued at approximately $1.2 million, investment accounts totaling about $300,000, and proceeds from the prior sale of a rental property.
In June 2019, Paul was diagnosed with cancer. He passed away in March 2020. His wife, Laura Whitaker, and their two children, Ethan and Grace both under the age of 18, became entitled to Paul’s share of the trust.
After Paul’s death, Walt continued as the sole acting trustee.
At first, the family expected the administration to move forward. But as time passed, communication became limited.
Warning Signs Began to Surface
By early 2022, Laura and her children had not received a formal accounting, no clear explanation of the trust assets, and no timeline for distribution. They also learned that Walt’s children were living in the Whitaker family home. No rent was being paid to the trust. At that point, Laura and her children contacted The Grossman Law Firm.
As half-siblings, the relationship between Paul and Walt’s sides of the family had always been somewhat distant. That distance now made communication more difficult, and concerns about unequal treatment began to grow.
The Grossman Law Firm reached out to Walt on Laura’s behalf for information. The responses were vague and incomplete.
By late 2022, the situation had not improved. The Grossman Law Firm demanded a formal accounting.
When the accounting was finally produced, it raised serious concerns. Large portions of the trust’s liquid assets were missing or undocumented. There were no clear records showing how funds had been allocated or preserved, and no justification for the lack of distributions.
At that stage, Walt faced potential personal liability. Under California law, a trustee must properly administer each subtrust, keep accurate records, and treat all beneficiaries fairly. Failing to do so can result in a surcharge, requiring the trustee to repay losses out of their own pocket.
The matter moved into trust litigation. Through legal action, the trust terms were enforced, funds were recovered, and Laura and her children ultimately received the inheritance they were entitled to.
Why This Becomes a Trust Litigation Issue
When a trustee fails to communicate, account, or preserve assets, beneficiaries have the right to seek court intervention.
This may include:
- Compelling a formal accounting
- Recovering lost or mismanaged assets
- Charging the trustee for the unpaid use of property
- Removing the trustee
- Forcing proper distribution
Even in family situations, the law applies the same standard. A trustee must act in the best interests of all beneficiaries, not just their own branch of the family.
Warning Signs a Trustee Is Acting in Against Your Interest
In cases like this, the problems usually develop over time.
Common warning signs include:
- Long periods with no communication.
- No accounting after repeated requests.
- Family members are using trust property without explanation.
- Delayed or missing distributions.
- Incomplete or unclear financial records.
If you are starting to notice these patterns, it is most likely a sign that the trustee is not meeting their legal obligations. For a more extensive breakdown of potential breaches, see 20 Ways Your Trustee May Be Breaching Their Fiduciary Duties, which outlines common warning signs and when legal action may be necessary.
What You Can Do and Why Timing Matters
If you are in a similar position, early action matters.
Start by gathering key information, including the trust document, any communication with the trustee, details about trust assets, and evidence of how those assets are being used. Even partial financial records can be helpful.
From there, a trust litigation attorney can evaluate whether the trustee has breached their duties and what steps can be taken to recover your share.
Delays can directly impact what you are able to recover. Over time, assets may be depleted, records may become harder to obtain, and informal arrangements may become more difficult to unwind. Acting early helps preserve evidence and protect your rights.
FAQ
Can a surviving co-trustee act alone after the other dies?
Yes, but they must still comply with the trust terms and all fiduciary duties under California law.
Can a trustee allow family members to live on trust property?
Not without proper justification. If the use benefits one side of the family without compensating the trust, it may constitute a breach of duty.
Related Resources
- Overview of California Trust Litigation
- Beneficiary Rights in California
- Trustee’s Duty: What is the Prudent Investor Rule?
- How to Get Your Trustee to Distribute Your Inheritance?
- Can You Remove a Trustee for Mishandling Assets?
- Can’t Afford a Probate or Trust Attorney?
How The Grossman Law Firm Can Help
When a trustee delays, avoids communication, or cannot account for trust assets, these issues rarely resolve without legal intervention. At The Grossman Law Firm, we help beneficiaries and heirs throughout California enforce their rights in probate and trust litigation. For over twenty-five years, our firm has helped clients recover and secure the inheritance they are entitled to.
Call (888) 443-6590 or fill out our Get Help Now form.
Our Intake Specialists can evaluate your case at no cost to you. Qualifying cases will be scheduled for a Free Phone Consultation with Attorney Scott Grossman.