One of the grounds for removing a San Diego Trustee (under Probate Code Section 15642) is where hostility or lack of cooperation among the Co-Trustees impairs the Trust administration. How often do Co-Trustees engage in hostility? All the time! Well, I may be jaded because I only see the bad Co-Trustee relationships, but it does seem to be a growing problem with individuals unable to come to agreement on how to properly manage and oversee a Trust administration.
When a Co-Trustee relationship becomes hostile, how do you prove it in Court? That’s not so easy sometimes. In fact, it can be highly subjective. What may feel mean spirited and hostile to you, may not be viewed that way by others, especially those who are not in the “line of fire” so to speak. So what type of hostility can suffice for removal, and what type do you just have to put up with?
In my experience, you are far more likely to obtain removal where hostility has impeded the current, and immediate, administration of the Trust. For example, let’s say a house has to be sold and the Co-Trustees cannot decide how to proceed. They cannot decide on a real estate agent to use, on a list price, on anything. Furthermore, let’s say the Trust has no money to pay the mortgage on the real property, which will go into arrears if the property is not listed and sold promptly. That is a good case for seeking removal (and probably temporary suspencion) because time is of the essence and a delay could cause a substantial loss to the Trust.
Did you notice something about my rationale there at the end of the last paragraph? Where’s the hostility? The analysis most judges use is what is the likelihood of immediate harm to the Trust as a result of the alleged hostility. In other words, hostility, by itself, is not compelling to obtain suspension or removal of a Co-Trustee. But hostility PLUS immediate risk of a substantial loss (coupled with an easy fix by merely asking for suspension) is more likely to result in action by the Court.
The opposite side of this analysis is that if the Trust can limp along without substial risk of loss (even with hostile Co-Trustees), then the Court is likely to let that happen for a longer period of time before removal is granted. Simply put, Court’s do not want to suspend or remove a Trustee unless they have to in order to protect the Trust. And that “to protect the Trust” reasoning must be objectively viewed—not a subjective view of how the Trust is losing money. It is a fine line, but you have to tease out the exigent circumstances fromyour case if you want to suspend or remove a Co-Trustee.
