Legal Question in Wills and Trusts in California
Regarding a probate trust missing assets totaling more than $250,000. A Successor Trustee was appointed after the primary Trustee failed to provide a full accounting. If the successor also fails what recourse do I have to recover the monies?
Thanks,
David H.
2 Answers from Attorneys
When the trustee fails to account, removal of the trustee is not your only remedy. In addition to a petition removing the trustee, the petition should also have sought "surcharge" of the trustee.
Probate Code section 16062 provides that, unless an exception applies, "... the trustee shall account at least annually, at the termination of the trust, and upon a change of trustee, to each beneficiary to whom income or principal is required or authorized in the trustee's discretion to be currently distributed."
If money or property is missing and unaccounted for, it is a breach of trust. "A violation by the trustee of any duty that the trustee owes the beneficiary is a breach of trust." (Prob. Code, sect. 16400.)
When the court surcharges the trustee, they order the trustee to pay back the trust.
You can seek to have the Court "surcharge" the Trustee responsible for the missing funds, which would appear to be the first one from what you have said.
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