Will Seeking to Remove a Fiduciary Violate a No Contest Clause?

When a beneficiary of a trust is concerned that the trustee, or “fiduciary,” is breaching his or her fiduciary duty by failing to act in the beneficiary’s best interests or is otherwise abusing his position, the beneficiary can seek to have the fiduciary removed. However, the beneficiary may be concerned about triggering a No Contest Clause in the trust. No Contest Clauses generally provide that, if a beneficiary contests the terms of the trust, he or she will be disinherited or otherwise removed as a beneficiary. These are serious consequences and should be always carefully considered when taking any action to modify the terms of a trust.

Fortunately, the California Legislature has declared that any petition to remove a fiduciary will never constitute a “contest” so as to trigger the No Contest Clause – no matter what the trust document itself may state. (California Probate Code §21305) The courts have commented on the rule, stating, “a beneficiary should be able to question the actions of a faithless fiduciary without being subject to the restrictions of [a no contest] clause.” See Bradley v. Gilbert (2009) 172 Cal. App. 4th 1058. According to the Bradley Court, “a beneficiary who believes a fiduciary is engaged in misconduct should be able to bring the alleged misconduct to the court’s attention without fear of being disinherited.” Id. at 1071; see also, Estate of Ferber (1998) 66 Cal. App. 4th 244.

If you are a trust beneficiary and are concerned that the fiduciary trustee is breaching his or her duty, is improperly managing trust assets, or is otherwise acting improperly, you should seek the advice of an attorney who is experienced in trust disputes and estate litigation. The Boesch Law Group estate, trust, and probate litigation attorneys regularly represents trust beneficiaries and can provide you with the quality representation you deserve. For more information, please contact one of our Los Angeles-based estate attorneys today at (310) 578-7880.

 

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