Trustees assume many duties. Some wanted – some unwanted. Some pleasurable – some painful. Evicting beneficiaries out of trust property
is among the most painful duties. The target of the eviction is usually a beneficiary
living with their parent at the time of their parent’s death. Or, a beneficiary who moves into the trust
property after the parents are deceased. If that beneficiary also happens to be a co-trustee
of the trust that now owns the home, the task becomes even more difficult. So, how does this happen? It happens over the control of the family
home – usually the most valuable trust asset. The home is often in the name of the parent’s
living or revocable trust. The parent is the trustee while alive. For these purposes, let’s assume that the
parent is a widow. She is the mother of four living children. She names two of her four children as successor
co-trustees of her trust. These two are to assume the obligations and
responsibilities of the trustee at their mother’s death. One of the co-trustees is living with her
mother. Mother dies. The two children become co-trustees. The co-trustee who is living in the home will
not vacate it. She is one of four beneficiaries – all equal
under the terms of the trust. The other beneficiaries are her sister, also
a co-trustee, and her two brothers. The co-trustee will not pay rent. She will not cooperate in the sale of the
house. All other beneficiaries want the house sold
and the proceeds divided equally. Everyone is at an impasse. What can be done? Co-trustees exercising their power must act
unanimously “unless otherwise provided in the trust instrument.” And there certainly is not unanimity here. Both trustees have a duty to take control
of and to preserve the trust property. There is also the duty to make the trust property
productive. The co-trustee living in the property is hindering
the control, preservation and productivity of the property. That co-trustee is violating her duty of loyalty
to the trust’s beneficiaries. She is not dealing impartially with them. She is preferring her own economic benefits
over those of her siblings. So, can she be evicted? Not without first getting a probate court’s
intervention. While a probate court is empowered to remove
one co-trustee, it is a difficult challenge. California’s Probate Code Section 15642
provides in part that a “trustee may be removed in accordance with the trust instrument,
by the court on its own motion, or on petition of a settlor, cotrustee, or beneficiary under
Section 17200 …”where hostility or lack of cooperation among cotrustees impairs the
administration of the trust.” Faced with choosing between two siblings,
the court might end the gridlock by removing both trustees and appointing a third party
to serve as the sole successor trustee. This is a possibility even if all other beneficiaries
join together in seeking the removal of the co-trustee living in the trust’s home. California courts regularly appoint professional
fiduciaries licensed under the Professional Fiduciaries Act as the sole successor trustee
of the trust. So, even assuming that the home-residing co-trustee
is removed, the result of an eviction attempt is not crystal clear. Even eviction efforts against layover beneficiaries
who are not co-trustees lack certainty of results. We return to the concept that the trustee
is the legal owner of the property. The beneficiaries are the equitable owners. The trustee (or co-trustees) may bring the
eviction action, and the beneficiary may oppose it. We’ve seen cases where the court will uphold
the eviction. And we’ve seen others where a different
remedy is encouraged or fashioned. Maybe the beneficiary can stay a bit longer,
pay rent, or pay partial rent with a later offset. Courts will try to be fair. And, we need to remind ourselves that the
Probate Court is a court of equity. You don’t see real cookie-cutter results
in these cases. Hackard Law represents clients in California
estate, trust and elder financial abuse litigation matters. We take significant cases where we think that
we can make a substantial difference and there is a wrongdoer who can be made financially
accountable for their wrongdoing. I note that not all cases end in protracted
battles. Most cases are actually resolved before trial. We listen to our clients. Most clients prefer reasonable resolution
over financially and emotionally exhausting legal wars. If you would like to speak with us about your
case, call us at Hackard Law (916) 313-3030. The key venues where we generally litigate
include the Probate and Civil Courts of Sacramento, Alameda, Contra Costa, San Mateo, Santa Clara
and Los Angeles Counties. Thank you for listening.