You might be surprised to learn that Trustees are not so easy to get rid of. It’s not impossible to remove a Trustee, but it’s not as easy as many people believe (or hope). That can be discouraging news when you have a Trustee who you believe is acting badly. So how do you go about removing a Trustee?
First, look at the Trust document. Some Trust documents give the Trust beneficiaries, or a stated person, the right to remove a Trustee. If that is the case, then Trustee removal is easy. You just follow the procedure outlined in the Trust document and your Trustee is gone.
If, however, your Trust does not give you the power to remove a Trustee (and most Trusts do not include that type of power), then you must file a Petition to Remove the Trustee in Probate Court. The problem with a removal petition is that it requires a trial before the court will decide on removal. It can take a long time to get to trial in our legal system. Cases can easily last ten to eighteen months, or longer, before going to trial. That means you must live with your bad Trustee even while you are trying to have them removed.
Alternatively, you can ask the court to suspend the Trustee pending their removal. A suspension is a great way to neutralize the effects of a bad Trustee until their permanent removal can be decided. But suspension and removal both take one important ingredient: evidence. You must have evidence to remove and/or suspend a Trustee.
For suspension, the court is usually looking for evidence that would indicate the Trust will suffer irreparable harm if the Trustee is not temporarily removed from office. The fact that the Trustee failed to account, or invested in certain stocks is usually not going to be enough to convince a judge to suspend a Trustee. If, however, the Trustee is taking money out of the Trust to put in their own pockets, then suspension may be granted. The best evidence for suspension is where Trust assets are in danger of being lost—such as in a foreclosure—and the Trustee is taking no action to pay the bills to retain the property.
For removal, you need to assemble your best evidence and be prepared to present that evidence at trial. The evidence should include all actions the Trustee took that would support a violation of their duties as Trustee. Keep in mind, that most courts want to retain the settlor’s chosen Trustee, if possible. That means it is your burden to prove that the Trustee should be removed.