Fideicomisario sucesor de California

What "successor trustee" means in California

Most California revocable living trusts name the settlor as the first trustee and then name one or more successors: the person or institution who steps in when the settlor can no longer act, and who administers the trust after the settlor's death. On accepting, a trustee administers the trust according to the instrument and, except as the instrument provides otherwise, according to the Trust Law (Prob. Code §16000).

While the settlor is alive, a trust with a California connection is revocable unless the instrument expressly makes it irrevocable (§15400). During that period, and while a person holding the power to revoke is competent, the trustee's duties are owed to that person, not to the beneficiaries (§15800(a)), and no account, terms or requested information is owed to a beneficiary while the trust may be revoked (§16069(a)). At the settlor's death the trust becomes irrevocable, and the beneficiaries' rights become their own.

Accepting, rejecting, and the reasonable time

Section 15600 names the two ways a named trustee accepts: signing the trust instrument, or a separate written acceptance; or knowingly exercising powers or performing duties under the instrument. Where trust property is at immediate risk of damage, the named trustee may act to preserve it without accepting, if a written rejection follows within a reasonable time to the settlor or, after the settlor's death or incompetence, to a beneficiary (§15600(b)).

A named trustee may reject the trust in writing, and a person who does not accept within a reasonable time after learning of being named has rejected it; a person who rejects is not liable with respect to the trust (§15601). Silence is therefore not neutral in California: it becomes a rejection once a reasonable time passes. A trustee who has accepted and later wants to leave resigns only by a method §15640 names, and liability for what happened before the resignation continues (§15641); a trustee may be removed as the instrument provides or by the court on the grounds §15642 lists.

Two beginnings: incapacity and death

A successor trusteeship usually begins in one of two ways, and they are not the same job. When the last person holding the power to revoke becomes incompetent — established by the method the instrument specifies or by a court (§15800(c)) — the trust is still revocable, but subdivision (b) changes who is owed what: within 60 days of receiving the information establishing the incompetency, the trustee gives notice that the subdivision applies, with a true and complete copy of the trust instrument and its amendments, to each beneficiary the trustee would be required or authorized to pay had the settlor died on that date, and the duties to account and to provide requested information run to them.

When the settlor dies, the trust becomes irrevocable and the successor's work takes on its dated clocks. Not later than 60 days after the death, the notification by trustee goes to each beneficiary and to each heir of the deceased settlor, served by mail or personal delivery to the last known address under §1215, with the contents §16061.7(g) lists and, for a death, the contest warning of subdivision (h) in a separate boldface paragraph. Where the death left the office vacant, the 60 days run from the day the new trustee begins to serve (§16061.7(f)); a settlor's waiver of the notification is void (§16061.7(i)).

In either beginning, the institutions the successor meets — banks, title companies, brokerages — want proof of authority rather than the instrument itself. The Trust Law provides it: a certification of trust under §18100.5 is an acknowledged declaration, signed by all currently acting trustees, confirming the trust's existence and date, the settlors, the trustees and their powers and the other facts the section lists, without the dispositive terms; a person who relies on it without knowing it is wrong is protected.

The duties that come with the role

The Trust Law's duties (§16000 and following) and the Uniform Prudent Investor Act (§§16045–16054) are the trustee's job description, and a successor who has read them once will recognize almost every later question as one of these duties in a particular costume.

• Administer the trust according to the instrument and, except as it provides otherwise, the Trust Law (§16000), with the care, skill and caution of a prudent person (§16040).
• Loyalty: administer solely in the beneficiaries' interest (§16002); no use of trust property for the trustee's own profit and no transaction adverse to a beneficiary (§16004).
• Impartiality among beneficiaries with different interests (§16003); principal and income allocated under the Uniform Fiduciary Income and Principal Act (§16320 and following).
• Take and keep control of the trust property and preserve it (§16006); keep it separate from other property and designated as the trust's (§16009).
• Within a reasonable time of accepting or receiving assets, review them and decide what to keep and what to dispose of (§16049), investing as a prudent investor would (§16047).
• Keep the beneficiaries reasonably informed (§16060); answer a reasonable request for information (§16061) and provide the terms of an irrevocable trust on request (§16061.5).
• Account at least annually, at termination and on a change of trustee, to the beneficiaries to whom income or principal is currently distributable (§16062), with the contents §16063 lists.
• Do not delegate what the trustee can reasonably be required to do personally (§16012); delegate investment functions only with the prudence §16052 describes, and hire the advisers §16247 allows.
• Exercise discretion reasonably (§16080) — even "absolute" or "sole" discretion under fiduciary principles (§16081) — and never condition a required distribution on a release (§16004.5).

First steps before acting

Whatever the beginning, the first steps look alike: find and read the trust and every amendment and restatement; decide to accept or reject, in writing (§§15600–15601); take reasonable control of the property (§16006) and review the assets (§16049); obtain the trust's own tax identification number and open the trust's own account, keeping it separate (§16009); and write down what the trust holds, as of the date the role began, in the form an account will later need (§16063). After a death, the 60-day notification (§16061.7) and, where the trust holds California real property, the change in ownership statement within 150 days (Rev. & Tax. Code §480(b)) are the first dated steps.

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Co-trustees, professional help, and delegation

When the trust names co-successors, California's default is unanimity: unless the instrument provides otherwise, a power held by two or more trustees may be exercised only by their unanimous action (§15620); an instrument that wants majority action says so. Keeping each cotrustee's agreement in the record is the ordinary protection, and any one cotrustee may serve the notification by trustee (§16061.7(a)(4)).

A trustee is not expected to be an accountant, an appraiser or a lawyer. The trustee may hire accountants, attorneys, appraisers, investment advisers and other agents (§16247) and may delegate investment and management functions as prudent, exercising prudence in selecting the agent, setting the scope and terms of the delegation and reviewing the agent's performance (§16052). The account names each agent hired, the agent's relationship to the trustee and the agent's compensation (§16063(a)(4)).

Resigning, being removed, and the vacancy

A trusteeship can end before the trust does. A trustee who has accepted may resign as the instrument provides, with the consent of the holder of a power to revoke, with the consent of the adult beneficiaries §15640 names, or with the court's approval; resigning does not release liability for earlier acts (§15641). A trustee may be removed as the instrument provides or by the court on the grounds §15642 lists, among them a breach of trust. On a change of trustee the trustee accounts (§16062(a)), and for an irrevocable trust the successor serves the notification by trustee within 60 days (§16061.7(a)(2)).

Who fills a vacancy is first the instrument's question: a practical method of appointment it provides, or the person it names, controls (§15660(b)). Otherwise a trust company that has agreed to accept may fill it on the agreement of all the adult current beneficiaries the section describes (§15660(c)), and failing that the court may appoint a trustee on petition, considering any nomination by beneficiaries 14 or older (§15660(d)). A successor who steps into a trust already in administration reviews what was received within a reasonable time (§16049) and administers well from the day the role began.

Compensation, liability, and the ways trustees get into trouble

A trustee is entitled to the compensation the instrument provides, which a court may adjust on the showings §15680 describes, or — where the instrument is silent — to reasonable compensation under the circumstances (§15681). Expenditures properly incurred are repaid from the trust (§15684). A trustee who is also an attorney takes either the trustee's compensation or compensation for legal services, not both, unless dual compensation is approved as §15687 provides.

A breach of trust is a violation of any duty the trustee owes a beneficiary (§16400), and the remedies of §16420 include compelling performance, enjoining the breach, compelling redress and removal. A claim is barred three years after the beneficiary receives an account or written report that adequately discloses it (§16460). The recurring breaches are the familiar ones: dealing with trust property for oneself (§16004), mixing trust money with one's own (§16009), letting the 60-day notification pass (a trustee who fails to serve it answers for the damages the failure causes unless a reasonably diligent effort was made, §16061.9), ignoring a request for an account, and distributing before the debts, the taxes and the reserve are known.

When a licensed California attorney is the right next call

TrusteeClear organizes the record; it does not give legal advice, it does not prepare a California notification or certification for a consumer, and it does not decide any of these questions for you. Many successor trustees bring the record to a licensed California attorney of their choosing at the points where the general rules run out: a dispute over who serves, who the heirs are, a discretionary distribution the instrument leaves open, property that may be community or separate (Fam. Code §760; Prob. Code §100), or a beneficiary's request the trustee cannot answer in full.