Petition for Surcharge

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Hi, this is Keith Davidson from Albertson & Davidson.  In this video, I want to talk about remedies that the court can use to fix your trust problem.  Under Probate Code section 16420, the court has a right to take certain actions against trustees in order to fix whatever problem you’re having with your trust.

Number one on that list is that the court can compel the trustee to take a certain action.  So, for example, if you’re entitled to a distribution of a house from a trust and the trustee refuses to make that distribution, the court has a right to order the trustee to take that action and distribute that asset.  And typically, that’s something that we’ll do on a petition for instructions.  So we’ll file a petition for instructions, that’s the name of the petition, and we’ll ask the court to compel the trustee to take an action.  And we’re allowed to do that and the court’s allowed to take that action under Probate Code section 16420.

The next thing the court can order the trustee to do is not take an action.  So let’s say the trustee is going to do something that will harm the trust.  Maybe they’re going to sell a property at below market value.  The beneficiary can come in and ask the court to not allow that action to take place.  And that’s called enjoining the trustee and the court can do that.

The third item the court can do is require the trustee to pay damages back to the trust for whatever harms the trustee has caused to the trust estate.  We’ll talk in a separate video about how you get to the amount that the trustee has to pay back.  But, for purposes of this video, you should know that the court can order the trustee to pay money back to the trust.  That’s one of the remedies the court has.

Number four is that the court can order the appointment of a temporary trustee or what we call a receiver to manage the trust estate under the court determines whether the main trustee should be permanently removed.  By appointing a temporary trustee, the court can have a neutral third party step in, make sure that everything’s safe during the litigation, and see whether or not whether the trustee should be permanently removed.  This is a common remedy that we ask for in a lot of our trust cases, and this is something the court has the power to do under the Probate Code.

Number five follows that up, which is the court has the right to permanently remove a trustee.  That typically takes a trial, a removal trial, where you have to go and present evidence.  But if the court is persuaded that this trustee should be removed for breaching their fiduciary duties, then the court has the power to apply that remedy and remove the trustee.

Number six, the court has the right to set aside trust actions.  So whatever action the trustee has taken, the court can set that aside.  There’s one exception, however, if the trustee has sold assets to a third party in an arms’ length transaction and that third party has paid full value in that transaction, for whatever asset or whatever the situation was, then the court cannot set aside that action.  Because, the law presumes that this innocent third party didn’t know what was going on with your trust, didn’t understand that there was a problem.  They shouldn’t be penalized for that, the trustee should.  So, instead, the trustee would just have to pay damages back to the trust rather than setting aside an action.  But barring that, the court can set aside trust actions as one of the remedies.

Number seven, the court has the right to reduce the compensation of the trustee as a remedy.  So if a trustee has breached his or her fiduciary duties to the trust and they’re requesting fees, the court has the right to reduce those fees, or even eliminate them altogether, if that was necessary to meet the ends of justice to make the trust whole.  That’s one of the remedies has.

And, number eight, the court has the right to impose an equitable lien, sometimes also referred to as a constructive trust, and to allow you to go out and trace assets.  So if the trustee has taken assets out of the trust, put them in their own accounts, put them in their own name, the court has the right to force the trustee to give those back to the right beneficiaries.  And that’s usually done through an equitable lien, constructive trust, or by allowing the beneficiaries to trace the assets and see where they ended up and pull them back into the trust.

So those are the remedies that the court has to try and fix your trust problem.