Serving with a co-trustee: California's unanimity default

Unanimity by default

California's default differs from many states': unless the trust instrument provides otherwise, a power vested in two or more trustees may only be exercised by their unanimous action (§15620). An instrument that wants majority action, or wants one trustee to act alone on some matters, says so.

Unanimity shapes the day-to-day. Signing authority, bank resolutions and the certification of trust — which is signed by all currently acting trustees and may state, where there are several, how many must sign (§18100.5) — all follow from it.

When a co-trustee is gone or absent

Unless the instrument provides otherwise, if a vacancy occurs in the office of a co-trustee, the remaining co-trustees may act for the trust as if they were the only trustees (§15621). Whether a vacancy must be filled is the instrument's question, and §15660 governs filling one where the instrument requires it.

A temporary absence is narrower: where a co-trustee is unavailable because of absence, illness or other temporary incapacity, the others may act as if they were the only trustees only where necessary to accomplish the trust's purposes or to avoid irreparable injury to the trust property (§15622).

Each co-trustee's liability

A trustee is generally not liable for a breach of trust committed by a co-trustee (§16402(a)) — but the exceptions are the ones that matter in practice. A trustee is liable for a co-trustee's breach where the trustee participates in it, improperly delegates the administration to the co-trustee, approves, knowingly acquiesces in or conceals it, negligently enables it, or neglects to take reasonable steps to compel redress of a breach the trustee knew of or reasonably should have known of (§16402(b)).

That is why careful co-trustees keep their own record of what each agreed to and when, and raise a concern in writing rather than letting it pass.

Notices and the shared duties

Some tasks need only one co-trustee: any one co-trustee may serve the notification by trustee after a death (§16061.7(a)(4)). The duties themselves — loyalty, impartiality, prudence, information and accounts — belong to each trustee, and a disagreement between co-trustees that blocks the administration is the kind of question that may be brought to the court by petition (§17200).

The statutes, verbatim

• Unanimous action of cotrustees

  Prob. Code §15620 ↗

  Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.

• Notification by trustee

  Prob. Code §16061.7 ↗

  Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.

• Certification of trust

  Prob. Code §18100.5 ↗

  Clear, simple explanation; the verbatim statute text is not yet attested in our library. See the official statute via the link above.

Common questions

Frequently asked questions

Do California co-trustees have to agree on everything?

Unless the trust instrument provides otherwise, a power held by two or more trustees may only be exercised by their unanimous action (§15620).

What if one co-trustee dies or resigns?

Unless the instrument provides otherwise, the remaining co-trustees may act for the trust as if they were the only trustees (§15621); whether the vacancy must be filled is the instrument's question (§15660).

Am I liable for my co-trustee's mistakes?

Generally not (§16402(a)), unless you participated in the breach, improperly delegated to the co-trustee, approved or concealed it, negligently enabled it, or failed to take reasonable steps to compel redress of a breach you knew or reasonably should have known of (§16402(b)).

General information about California law, not legal advice.