Legal Question in Wills and Trusts in California

Removal of Unethical Trustee Does Not Trigger No Contest?

Our family has a successor trustee that is spending money like water and has not given any of us an accounting for almost 2 years. As a beneficiary, I would like to petition for the trustee's removal, but fear the ''no contest'' clauses which specifically state that is a contest. I have read this provision: ''PC 21305(d) provides that a pleading regarding the appointment of or the removal of a fiduciary does not violate a no contest clause as a matter of public policy.'' Does this new code supersede what is written in the Trust?? The Revocable Trust is long and was signed at the end of 2002. It is the amended Trust to the first revocable trust signed in 1993, which had similar language. (Would it be considered an amended no contest, when there was also a ''no contest'' in the 1993 Trust?) The 2002 Trust supersedes the 1993, it appears. From what I understand, an attorney can file to remove the trustee for Breach of the Trust, and since it's after 2001, by the new Probate Codes, that is not a contest. I just want to be sure it is not a contest, even if it specifically states it is, in the new 2002 Trust. Could you please clarify that for me? (It seems the 2002 Trust with those no contest terms, was invalid at the time it was drafted?)


Asked on 11/30/04, 11:22 pm

1 Answer from Attorneys
Chris Johnson Christopher B. Johnson, Attorney at Law

Re: Removal of Unethical Trustee Does Not Trigger No Contest?

It may trigger the clause--a review of the trust could tell you for sure. There is a "safe harbor" provision allowing the filing of a petition asking the court whether it would violate the provision. You can also file a petition to compel an account and this generally will not trigger the no contest clause. It's a tricky area, so you (and your attorney) should proceed with caution, but there are ways to get the account and the distribution you're entitled to.

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Answered on 12/01/04, 2:01 pm


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