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By: Scott Grossman on June 24th, 2024

What Happens If a Trustee Does Not Follow the Trust?

Losing a loved one is a profoundly emotional experience, often accompanied by a host of legal and financial matters that need to be addressed. One such issue can be the proper administration of a trust. In California, the role of a trustee is pivotal in ensuring the grantor’s wishes are honored and executed faithfully. However, what happens if a trustee does not follow the trust? This article aims to provide clear, empathetic guidance on this issue, helping beneficiaries navigate the challenging terrain of trust litigation. And what to do when a trustee doesn’t follow the terms of the trust.

Understanding Trusts

Overview of Trusts in California

A trust is a legal arrangement in which one party, known as the trustee, holds and manages assets for the benefit of another party, the beneficiary. Trusts are established to ensure that assets are distributed according to the trustor’s (the person who creates the trust) wishes, often to avoid probate, minimize estate taxes, and provide for minor children or incapacitated family members.

Types of Trusts

There are various types of trusts, including revocable living trusts, irrevocable trusts, and special needs trusts, each serving different purposes and offering unique benefits. Revocable living trusts can be altered or revoked by the trustor during their lifetime, while irrevocable trusts generally cannot be changed once established. Understanding the type of trust is crucial, as it influences the trustee’s responsibilities and the legal recourse available to beneficiaries. 

Importance of Adhering to Trust Terms

Trustees have a fiduciary duty to manage the trust assets according to the terms outlined in the trust document. This duty is not only a legal obligation but a moral one as well, as it honors the wishes of the deceased and protects the beneficiaries’ interests. When trustees fail to adhere to these terms, it can lead to significant emotional and financial distress for the beneficiaries. So, what happens when a trustee doesn’t follow the trust?

Common Ways Trustees Fail to Follow the Trust

Mismanagement of Trust Assets

One of the most common breaches of fiduciary duty involves the mismanagement of trust assets. This includes poor investment choices, failure to maintain real estate, or inappropriate use of funds properly. Trustees are expected to act prudently and in the best interest of the beneficiaries, keeping accurate records and ensuring the assets are preserved and grown responsibly.

Failure to Distribute Assets as Specified

Another frequent issue is the failure to distribute assets according to the trust’s instructions. Trustees may delay distributions, withhold assets unjustly, or misinterpret the terms of the trust. Such actions can cause undue hardship for beneficiaries relying on these assets for their financial well-being.

Lack of Communication with Beneficiaries

Trustees must keep beneficiaries informed about the trust’s status, including providing regular accountings and updates on any significant actions taken. A lack of communication can lead to mistrust and suspicion, exacerbating a stressful situation for beneficiaries.

Conflict of Interest

Trustees must avoid conflicts of interest that could compromise their ability to act impartially. When a trustee has a personal stake in the trust’s assets or stands to gain from certain decisions, it can lead to actions that are not in the best interest of the beneficiaries. Are there any consequences when a trustee doesn’t follow the terms of the trust?

Legal Consequences for Trustees

Breach of Fiduciary Duty

When trustees fail to follow the trust, they breach their fiduciary duty. This breach can have serious legal consequences. Beneficiaries can file a lawsuit against the trustee, seeking to remove them and recover any losses incurred due to the trustee’s actions. Courts take breaches of fiduciary duty very seriously and may impose significant penalties.

Potential Civil and Criminal Penalties

Trustees may face civil and even criminal penalties depending on the severity of the breach. Civil penalties can include financial restitution to the beneficiaries, while criminal penalties might arise if the trustee’s actions involve fraud, embezzlement, or other illegal activities. Trustees can be personally liable for any financial losses caused by mismanagement or misconduct.

Personal Liability of the Trustee

A trustee can be personally liable for their actions if they act in bad faith or with gross negligence. That means they could be required to compensate beneficiaries for their assets, underscoring the importance of diligently and honestly fulfilling their duties.

Remedies for Beneficiaries

Demanding an Accounting

Beneficiaries have the right to request a formal accounting from the trustee. This accounting should detail all transactions involving the trust assets, providing a clear picture of how the assets have been managed. If the trustee fails to provide an adequate accounting, beneficiaries can petition the court to compel the trustee to do so.

Petitioning for Trustee Removal

If beneficiaries believe the trustee is not acting in their best interest, they can petition the court for the trustee’s removal. Grounds for removal include breaches of fiduciary duty, incapacity, or any actions that harm the trust or its beneficiaries. The court will evaluate the evidence and determine whether removal is justified.

Filing a Lawsuit for Breach of Trust

Beneficiaries can file a lawsuit for breach of trust in cases of serious misconduct. This legal action seeks to hold the trustee accountable for their actions and recover any losses suffered by the beneficiaries. The litigation process can be complex and time-consuming, but protecting the beneficiaries’ rights and interests is often necessary.

Seeking Surcharge or Damages

Beneficiaries may also seek a surcharge against the trustee, a financial penalty imposed by the court to compensate for losses caused by the breach of duty. Additionally, beneficiaries can seek damages for any harm from the trustee’s actions, including emotional distress and loss of expected inheritance.

The Legal Process for Addressing Trustee Misconduct

Initial Steps for Beneficiaries

Beneficiaries who suspect trustee misconduct should first gather evidence and document any instances of mismanagement or breaches of duty. Consulting with an attorney specializing in trust litigation is also crucial, as they can provide expert guidance on the best course of action.

Mediation and Settlement Options

Beneficiaries and trustees may opt for mediation or other alternative dispute resolution methods before resorting to litigation. Mediation allows both parties to discuss their issues with the help of a neutral third party, aiming to reach a mutually acceptable resolution without needing a court battle.

Court Proceedings and Litigation

If mediation fails or is not an option, the case may proceed to court. The litigation process involves filing a petition, presenting evidence, and potentially going to trial. The court will evaluate the facts and decide based on the case’s merits. This process can be lengthy and costly, but achieving justice and protecting the beneficiaries’ interests may be necessary.

Protecting the Trust and Beneficiaries from Breach

Preventative Measures for Trustees

Trustees can take several steps to avoid potential conflicts and ensure they fulfill their duties properly. These include maintaining detailed records, seeking professional advice, and communicating transparently with beneficiaries. Adhering strictly to the terms of the trust and acting in good faith is essential for preventing disputes.

Importance of Clear Trust Documents

One of the best ways to prevent issues is to ensure the trust documents are clear and comprehensive. Ambiguities in the trust can lead to misunderstandings and disputes. Trustors should work with experienced estate planning attorneys to draft precise and unambiguous trust documents that outline the trustee’s duties and beneficiaries’ rights.

Role of Trust Protectors

In some trusts, a trust protector oversees the trustees and ensures they act according to the trust terms. The trust protector can review the trustee’s actions, demand accountings, and even remove and replace the trustee if necessary. This added layer of oversight can provide additional protection for the beneficiaries.

Case Studies and Examples

Notable California Cases

Several high-profile cases in California illustrate the complexities and consequences of trustee misconduct. For example, in the Estate of Bowles, the trustee was found to have mismanaged trust assets and was removed and surcharged by the court. Such cases highlight the importance of trustees adhering to their fiduciary duties and the legal remedies available to beneficiaries.

Lessons Learned from Real-Life Scenarios

Real-life scenarios provide valuable lessons for both trustees and beneficiaries. They emphasize the need for diligent trust administration, the potential pitfalls of trustee misconduct, and the importance of seeking legal recourse when necessary. These examples can offer insights and guidance for those navigating similar challenges.


Navigating the aftermath of losing a loved one is difficult enough without the added stress of dealing with a trustee who does not follow the trust. Understanding the legal framework, recognizing the signs of trustee misconduct, and knowing the remedies available can empower beneficiaries to take appropriate action. Trustees, on their part, must remember their fiduciary duties and act in the best interest of the beneficiaries to honor the trustor’s wishes and avoid legal consequences. Trustees can fulfill their roles effectively by maintaining transparency, acting prudently, seeking professional advice when needed, and ensuring the trust’s objectives are met and beneficiaries are protected.

Next Steps

Understanding the basic duty of a trustee in California is essential for trustees and beneficiaries alike. Trustees can effectively manage trusts and protect beneficiaries’ interests by adhering to fiduciary duties, maintaining transparency, and seeking legal guidance when needed.

To ensure they follow their fiduciary duties, check out our complete Overview of California Trust Litigation on our website. If you have more questions about your rights as a Beneficiary and what you should know moving forward. 

Our law firm specializes in trust and estate law, and we are here to assist trustees in fulfilling their duties and navigating legal complexities.

Our law firm specializes in trust and probate law, and we are here to help you navigate these complex issues. Contact us today for a consultation. Let us assist you in ensuring your rights are upheld and your trust is managed prudently. Please call us at (888) 443-6590 or fill out our Get Help Now form below.