If you think that someone has pressured your loved one to alter their will, then you might wish to take action immediately. However, in California it is usually not possible to challenge a will while the loved one is still alive.
Until they pass away, they can generally amend or revoke their will as long as they have legal capacity. That means even if you believe something is wrong with the current will, a will contest usually cannot move forward yet.
At The Grossman Law Firm, Attorney Scott Grossman represents heirs and beneficiaries throughout California in cases where concerns about a will lead to probate litigation.
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Key Takeaways
- A trustor is the person who creates a trust and establishes its terms.
- A trustee is responsible for managing trust property and following the instructions in the trust.
- The same person can sometimes serve as both the trustor and trustee while they are alive.
- When the trustor passes away, a successor trustee usually steps in to handle the trust for the beneficiaries.
- Beneficiaries may have legal options if a trustee ignores the trust’s terms or breaches their fiduciary duties.
What Is a Trustor?
The person who establishes a trust is known as a trustor; this individual is sometimes called the settlor or the grantor.
The person who creates the trust sets out the terms of the trust, specifying who is to benefit from it and how the trust property is to be distributed in the end.
Beneficiaries should realize that the trustor’s instructions usually determine what happens to the trust property after the trustor’s death.
After the trust has become irrevocable, a trustee cannot merely alter those instructions since they disagree with them or because they would like to distribute the property in a different way.
What Is a Trustee?
The trustee is the person responsible for administering the trust.
California law requires trustees to hold fiduciary duties. Together with other obligations, a trustee is generally required to:
- Follow the terms of the trust
- Act in the beneficiaries’ interests
- Protect trust property
- Keep trust property separate from their own
- Keep beneficiaries reasonably informed
- Provide accountings when California law requires them
- Make distributions according to the trust
The trustee has authority over trust property, but that authority comes with legal responsibilities.
If you suspect your trustee isn’t acting in your best interest, don’t wait. Explore 20 Ways Your Trustee May Be Breaching Their Fiduciary Duties to learn common warning signs and available actions.
Can the Trustor Also Be the Trustee?
It is common for the individual who sets up a revocable living trust to serve as the first trustee.
That doesn’t mean the two roles are interchangeable (‘Trustor’ refers to the person who set up the trust, and ‘Trustee’ refers to the person responsible for administering it)
When the trustor dies or is no longer able to serve, a successor trustee can take over.
What’s the Difference Between a Trustor and a Trustee?
The easiest way to understand the difference is to look at what each person does:
| Creates the trust | Administers the trust |
| Establishes the trust’s terms | Follows the trust’s terms |
| Identifies the beneficiaries | Manages property for the beneficiaries |
| Determines how trust property should be distributed | Carries out required distributions |
| May initially serve as trustee | May be replaced by a successor trustee |
For beneficiaries, this distinction matters because the trustee generally cannot substitute their own wishes for the instructions the trustor left behind.
What Happens After the Trustor Dies?
After the trustor dies, the successor trustee typically takes responsibility for administering the trust.
Depending on the trust, that may include identifying and protecting trust assets, paying proper expenses, providing required notices and information, preparing accountings, selling property when appropriate, and eventually distributing assets to the beneficiaries.
This is also when many trust disputes begin.
A beneficiary may discover that the trustee refuses to provide information, delays distributions without a clear explanation, uses trust property for personal use, or handles assets differently than the trust appears to require.
What If the Trustee Does Not Follow the Trust?
Beneficiaries do not have to accept a trustee’s misconduct.
California Probate Code § 17200 allows beneficiaries to petition the probate court concerning the internal affairs of a trust, including certain disputes involving a trustee’s duties.
Depending on what happened, a beneficiary may seek to compel an accounting, require the trustee to perform their duties, recover trust property, hold the trustee responsible for losses, or seek the trustee’s removal. California Probate Code § 16420 identifies remedies courts may order for a breach of trust.
Not every disagreement with a trustee amounts to a breach of fiduciary duty. But if the trustee ignores the trustor’s instructions or their actions put your inheritance at risk, it may be time to have an attorney review what is happening.
FAQ
Is the person who establishes the trust the same as the person who holds the trust?
No. The trustor creates the trust, while the trustee administers it. However, one person may serve in both roles during their lifetime.
Is a trustor the same as a settlor?
Generally, yes. Trust documents may use terms such as trustor, settlor, or grantor to describe the person who created the trust. California’s Probate Code generally uses the term settlor.
Can a trustee alter what the trustor had intended?
A successor trustee is usually required to carry out the provisions of an irrevocable trust and does not have the power to alter the trustor’s instructions unlimitedly; the question of whether a trust can be changed is determined by the trust and by California law.
What can I do if the trustee isn’t following the terms of the trust?
If you are a beneficiary and believe the trustee is violating the trust or their fiduciary duties, you may have grounds to petition the California probate court. Contact TGLF today and and intake specialist will review your case to determine what options may be available.
Related Resources
- Overview of California Trust Litigation
- Beneficiary Rights in California
- Trustee’s Duty: What is the Prudent Investor Rule?
- How to Get Your Trustee to Distribute Your Inheritance?
- Know What You’re Getting Into: The Timeline of a Trust and Estate Lawsuit
- Can You Remove a Trustee for Mishandling Assets?
- Can’t Afford a Probate or Trust Attorney?
How The Grossman Law Firm Can Help
It may appear that there is little difference between a trustor and a trustee, but this becomes important when a trustee fails to carry out the instructions set out in the trust.
If you believe that a trustee is preventing you from receiving your inheritance, is mismanaging the trust property, or is not fulfilling their duties, our firm will be able to look at your situation and tell you what steps you can take.
At The Grossman Law Firm we assist beneficiaries and heirs all over California in enforcing their rights during probate and trust litigation.
You can either call the number (888) 443-6590 or fill out our Get Help Now form to talk about your situation.
You can have your case assessed by our Intake Specialists at no cost to yourself, and if it meets the requirements, you will be arranged a free phone consultation with Attorney Scott Grossman.
Originally Published: May 25, 2023