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If a de facto trustee in California takes a trustee’s fee from a trust, does it violate California trust law?

Whether or not a person rightfully took trustee’s fees from a California trust depends on the terms of the trust instrument and whether or not the person was a named trustee in the document, a de facto trustee, or a trustee de son tort. Many trust instruments have provisions that outline under what terms the trustees can receive compensation for their services. When someone was not clearly named a trustee or successor trustee, the argument over a trustee fee relies heavily on whether the individual is deemed a trustee de facto or de son tort.

A trustee de son tort has no authority to assert control over the trust assets but does so anyway. A trustee de facto, on the other hand, is someone who has at least some level of claim to be a trustee and who acts as such. A de facto trustee may be entitled to trustee’s fees for the work performed. A trustee de son tort is usually not entitled to such a fee. This is because he or she undertook the duties of the role without authorization.

If the individual is successful in claiming to be a de facto trustee, the court will then consider the following:

  • First of all, would a duly appointed trustee in the same circumstances be entitled to a fee?
  • Additionally, did the de facto trustee provide legitimate services to the trust?
  • Lastly, did the terms of the trust provide for a trustee’s fee?

In conclusion, for more information about trust litigation in California, view our free guide, The Ultimate Guide to California Trust and Probate Litigation. For further guidance, contact an experienced San Diego probate lawyer today. Call our toll-free number at (888) 443-6590 for a consultation. It would be our pleasure to further assist you.

Litigation (noun):

Litigation is the act or process of bringing a lawsuit to enforce a particular right. This can include Will contests, Trust Litigations, and Probate Litigation.


Scott Grossman

Scott Grossman


The Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307

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