Back to the Learning Center

By: Scott Grossman on October 14th, 2016

Proving a Trustee Should Pay Out of Pocket Due to Negligence

When a trustee steals from a trust or otherwise harms the trust as a result of negligence, there are several remedies available to the beneficiaries. One such remedy is to petition for a surcharge. A trustee surcharge requires that the trustee pay back the funds that were lost due to the trustee’s action or inaction out of his or her own personal assets. Like many other trust litigation matters involving the probate court, a petition for surcharge has the best chance for success when it is prepared by and under the oversight of an experienced legal professional.

Proving a Trustee Should Pay Out of Pocket Due to Negligence

Typically, you will have to demonstrate the following:

  1. That the trustee is responsible for the loss, destruction, or financial harm to the trust assets.
  2. The reasonable standard of care for trustees in similar circumstances.
  3. That the trustee failed to meet that standard.
  4. That the beneficiaries or the trust suffered harm as a result of the actions of the trustee.
  5. The amount of money that it would take to make the trust or beneficiaries whole.

Fiduciary surcharge actions can preserve assets of the trust that were harmed from the actions of the trustee. For example, suppose a trustee stole trust funds that earn significant interest.  Then trustee is held responsible to replace the assets and the interest that would have accrued on those assets.

If you are ready to start your case, then please give us a call or fill out our Get Help Now form. A comprehensive overview of California Probate is available here. Should you have additional questions about trust litigation, you will find plenty of useful information in our Learning Center.