Can a trustee be removed as trustee of a trust? Yes, but it is difficult to remove a trustee. Generally, you must have an evidentiary hearing, which is a trial. It takes time to remove a Trustee. You must go through the litigation process from start to finish before a trial can take place. The trial dates are usually set far out in the future.
This is frustrating to many Trust beneficiaries who believe that a Trustee should be easily removed as soon as the Trustee takes an inappropriate action. There rarely is an easy Trustee removal case. The beneficiary must start the process by filing a lawsuit, and then both sides are given a chance to gather evidence, subpoena records, and take depositions. Most Trustees will fight to remain in their position as Trustee, even though they have all the duties and obligations under the Probate Code. That means the beneficiary must work hard to gather evidence to prove their case come time of trial.
What Happens at Trial?
At trial, the court will hear all the evidence and then make a forced decision as to whether the Trustee will be removed. And just because you think the Trustee is terrible does not mean the court will agree with you. Removal trials are called “bench trial” because they are decided solely by a single judge and not a jury (the judge sits at the “bench”; thus, it is called a bench trial). In other words, your removal trial will come down to the opinion of a single judge. Either the judge agrees with you or not—end of story.
Suspension of the Trustee
There is one other alternative. A judge has the right to suspend a Trustee. Suspension is temporary. The court can suspend the Trustee from acting pending a trial on the removal trial. If the Trustee wins the trial, then the Trustee is reinstated and can continue acting. If the Trustee loses the trial, then their suspension will be permanent.
While suspension can happen without a full-blown trial, it can still be difficult to convince a court to suspend a trustee. You must have some evidence that suspension is necessary to safeguard the interests of the Trust. Some courts are more willing to suspend a Trustee than others. It all comes down to the judge, and more importantly, the evidence you must support suspension.
