What Is a Trustee De Son Tort?
In California, a trustee de son tort is a person who has no legal authority to act as a trustee but nevertheless behaves as one. It usually involves taking control of trust property or participating in trust administration tasks reserved for an appointed trustee.
Under California trust-law principles:
- A person who wrongfully holds themselves out as a trustee can be treated as a trustee for liability purposes.
- Courts will not allow someone to take advantage of the benefits of acting like a trustee without also bearing the legal responsibilities and consequences.
- A trustee de son tort typically has no right to compensation for their involvement with the trust.
- Beneficiaries may pursue civil liability regardless of whether a successor trustee later takes over.
California courts have consistently held that anyone who intermeddles with trust property assumes the same fiduciary duties and, therefore, the same potential liability as an appropriately appointed trustee.
How Trustee Fraud Occurs in California
Trustee fraud does not always involve an appointed trustee acting alone. Many cases involve unauthorized assistance or interference from friends, family members, business partners, or other third parties.
Common examples include:
1. Unauthorized Control of Trust Assets
Someone may start managing bank accounts, selling trust property, or making investment decisions without formal authority.
2. Participating in Transactions That Harm the Trust
A third party may help the trustee hide transactions, move money, or shift assets in ways that benefit the third party or the trustee at the expense of beneficiaries.
3. Holding Oneself Out as a Trustee
A person may claim authority to act, sign documents, or speak on behalf of the trust, even though they have no such legal status.
4. Improper Assistance in a Trustee’s Breach
A third party can be liable even if they never claimed to be the trustee. If they meaningfully participated in the trustee’s breach, they may be treated as a trustee de son tort.
At The Grossman Law Firm, we evaluate whether a trustee, a third party, or both may be legally responsible for the harm caused to trust assets.
When a Third Party Can Be Liable as a Trustee De Son Tort
California law allows beneficiaries to sue a third party who participates in a breach of trust, even if:
- The trustee later resigns or is replaced.
- The third party never intended to act as a trustee.
- There is no evidence of a conspiracy between the trustee and the third party.
A beneficiary may pursue claims against:
- The actual trustee
- The third party who acted as a trustee de son tort
- Both simultaneously
Liability is based on conduct, not title. Once a person exercises unauthorized control over trust property, they may be held accountable for breach of fiduciary duty and for losses caused to beneficiaries.
Legal Remedies Available to Beneficiaries
Beneficiaries harmed by trustee fraud or unauthorized third-party involvement have several legal tools available in California probate court.
1. Surcharge (Financial Damages)
Both the trustee and the de-son-tort party may be ordered to repay losses caused by their actions.
2. Removal or Suspension of the Trustee
If the trustee enabled or collaborated with the unauthorized person, the court may remove the trustee.
3. Compelling an Accounting
The court may order a full accounting to trace misused or diverted trust assets.
4. Recovery of Trust Property
Property that has been wrongfully transferred or controlled by a third party can be recovered and returned to the trust.
5. Civil Liability for the Third Party
A trustee de son tort can be treated like a trustee for liability purposes, meaning they face the same remedies and financial consequences.
Beneficiaries do not have to wait for the trustee to act. They can bring the claim themselves, especially when the trustee is unwilling or unable to enforce the trust’s rights.
FAQ
What does “trustee de son tort” literally mean?
It is a French-derived legal term meaning “trustee of his own wrong,” referring to a person who becomes liable as a trustee by wrongfully acting like one.
Can a trustee de son tort be paid for their involvement?
No. Because the trustee de son tort had no authority to act, they are not entitled to trustee compensation.
Do I need to prove a conspiracy?
No. California law does not require proof of conspiracy to hold a third party liable.
Can I sue the actual trustee and the unauthorized person at the same time?
Yes. Beneficiaries may pursue claims against both parties simultaneously.
Does a successor trustee eliminate the claim?
No. Appointing a new trustee does not protect the wrongdoer from liability.
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. If you suspect trustee fraud or believe a third party has wrongfully interfered with trust property. In that case, our team can evaluate whether a trustee-de-son-tort claim is appropriate and what remedies are available.
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.
Related Resources
Related Resources
If you found this overview helpful, you may also want to read:
- Overview of California Trust Litigation
- Beneficiary Rights in California?
- Can a Trustee Be Removed for Mishandling Assets?
- Do Beneficiaries Have to Pay Taxes?
- 20 Ways Your Trustee Can Be Breaching Their Fiduciary Duties
- Can’t Afford a Probate or Trust Attorney?
Originally Published September 15, 2016