De Facto Trust: Claiming to be a Trustee

Key Takeaways
What It Means to Act as a Trustee in California
Trustee de Facto vs. Trustee de Son Tort
When a De Facto Trustee May Receive Compensation
When a Trustee de Son Tort Is Denied Compensation
How California Courts Evaluate De Facto Trustee Claims
When Beneficiaries Should Take Action
FAQ
Related Resources
How The Grossman Law Firm Can Help

Key Takeaways

A person not formally appointed as a trustee may still be treated as a de facto trustee if they reasonably believed they were authorized to act.
A person who takes control of trust assets without any authority may be deemed a trustee de son tort, and they are usually not entitled to trustee fees.
California courts evaluate whether the person acted in good faith, whether the trust allows compensation, and whether the services benefited the trust.
Wrongful control of trust assets can expose the individual to liability, including breach-of-fiduciary-duty claims.
Beneficiaries can petition the court if someone improperly asserts trustee authority or takes trustee fees.

What It Means to Act as a Trustee in California

Trustees have significant responsibilities under the California Probate Code, including managing assets, protecting trust property, providing accountings, and administering the trust in accordance with its terms.

But sometimes, a person who was never named as trustee takes control of trust property or performs trustee duties. When this happens, the law must determine whether they acted as:

A trustee de facto, who believed they had some legitimate claim to authority, or
A trustee de son tort, who acted without any authority at all

This classification determines whether the individual may receive trustee fees or face liability for stepping into a role they were never given.

Trustee de Facto vs. Trustee de Son Tort

Trustee de Facto

A de facto trustee is someone who:

Has a reasonable basis to believe they have authority
Acts like a trustee
Controls or manages trust assets
Performs duties normally carried out by a trustee

They are not formally appointed, but they act under circumstances suggesting they had some legitimate claim. Courts may compensate a de facto trustee if their efforts benefited the trust.

Trustee de Son Tort

A trustee de son tort is very different. This person:

Has no authority to act
Wrongfully takes control of trust property
Exercises powers that belong only to a duly appointed trustee
May cause harm to beneficiaries

Because their actions are unauthorized, they are rarely entitled to trustee fees. They may also be liable for damages caused by their interference.

When a De Facto Trustee May Receive Compensation

Suppose an individual successfully proves they acted as a de facto trustee. In that case, the court evaluates their request for compensation by examining:

Would a properly appointed trustee be entitled to a fee?

If the trust instrument authorizes trustee compensation, a de facto trustee may be treated similarly.

Did the de facto trustee provide legitimate and necessary services?

Courts review whether the work:

Protected trust assets
Provided a clear benefit to beneficiaries
Was work normally expected of a trustee

Did the trust document allow for trustee fees?

Even if the person acted reasonably, the trust’s written terms may ultimately determine whether compensation is allowed.

A de facto trustee who acted in good faith and followed the trust’s intent may be compensated, but this is never guaranteed.

When a Trustee de Son Tort Is Denied Compensation

A trustee de son tort acts without authority and therefore cannot justify receiving fees.

In most cases, the court denies compensation because:

The individual wrongfully assumed control
Their actions may have violated fiduciary standards
They acted without transparency or accountability
Their interference may have caused financial harm

Courts often treat these actions as a breach of trust.

In some circumstances, the court may order the trustee de son tort to return money or property, reimburse losses, or pay damages.

How California Courts Evaluate De Facto Trustee Claims

When a dispute arises over whether someone acted as a de facto trustee or a trustee de son tort, courts examine:

Whether the person had any legitimate claim to authority
Whether they acted in good faith
Whether their actions benefited or harmed the trust
Whether the trust document permits compensation
Whether a properly appointed trustee would have been entitled to similar fees

The person claiming de facto status bears the burden of proof.

If they cannot demonstrate a good-faith basis for their actions, they risk being treated as a trustee de son tort.

When Beneficiaries Should Take Action

Beneficiaries should be concerned when:

Someone who is not the named trustee controls trust assets
Fees are taken by a person who lacks authority
Multiple individuals claim to be the trustee
A trustee dies or resigns, and someone informally steps into the role
Trust assets are being mismanaged during a leadership gap

These situations can lead to financial loss, self-dealing, or confusion about who is responsible for administering the trust.

Beneficiaries can petition the court to:

Confirm the rightful trustee
Compel the return of improperly taken fees
Remove unauthorized individuals from trust control
Seek damages, surcharges, or restitution
Clarify administration duties and protect trust assets

FAQ

Can someone act as a trustee without being formally appointed?

Yes. If a person had a reasonable basis for believing they had authority, they may be treated as a de facto trustee.

Can a de facto trustee receive trustee fees?

Possibly. Courts may award fees if the trust allows compensation and the services benefited the trust.

What happens if someone acts without any authority?

They may be considered a trustee de son tort and are usually denied compensation. They may also face liability.

How do I challenge someone acting as a trustee?

You can petition the California probate court to confirm the rightful trustee and address any unauthorized actions.

What if the trust administration were to stop because no trustee was appointed?

A beneficiary can request the court to appoint a successor trustee to protect trust assets.

Related Resources

How The Grossman Law Firm Can Help

At The Grossman Law Firm, we help beneficiaries and heirs throughout California enforce their rights in probate and trust litigation.

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.

Originally Published May 3, 2018