Legal Question in Wills and Trusts in California
Probate Code Prohibiting Drafter of Trust making self Trustee
Hello, Please help. Could you please tell me the number of the Probate Code that prohibits the drafter of the Trust, to then name himself as the successor trustee? In addition, this trustee appointed himself in his position. We have a letter where he states prior to drafting the amended trust, that a family member has decided not to be the successor anymore, so he has ''replaced his name with theirs.'' The trustee is an attorney, and is also charging dual compensation, both legal fees and a percentage of the estate. My parents tried to fire him and he would not leave. He also has not given an accounting for over 2 years, and is ignoring a court stipulation from last summer to do so, and every request to get the accountings he ignores. What can be done to remove him? My parents had an attorney, who was replaced by PVP counsel, who is resigning, now that the conservatorship for both parents is in place. This successor trustee is continuing his malfeasance. I wouldn't be surprised if he is reading this. Please be sure to list the probate code in your answer. I want more information when my parents and I speak to a lawyer for help.
2 Answers from Attorneys
Re: Probate Code Prohibiting Drafter of Trust making self Trustee
It is unethical for a lawyer to draft a document that gives him money unless he has advised his client of the need for independent review by disinterested counsel. http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=96391312793+0+0+0&WAISaction=retrieve. You might write to the attorney and ask him to produce a signed "certificate of independent review" just to start things moving. It is good that you have the court order which demands the accounting. Now you continue making demands in the court for him to produce this accounting. This case should end up in arbitration a.s.a.p.
Re: Probate Code Prohibiting Drafter of Trust making self Trustee
there is no prohibition against the drafter of a trust from being named as a successor trustee. however, it is a violation of the code of ethics to take both legal fees and trustee fees from the trust.
an attorney who serves as both attorney for and executor of an estate may not receive compensation for legal services rendered to the estate. (Estate of Parker (1926) 200 Cal. 132, 135-136.)this rule is grounded in public policy in order to preclude the conflict of interest that would inevitably arise when the executor-attorney employs himself to perform legal services for the estate.
"[N]o one who has a duty to perform shall place himself in a situation to have his interests conflicting with that duty; and a case for the application of the rule is that of a trustee himself doing acts which he might employ others to perform, and taking payment in some way for doing them. As the trustee might make the payment to others, this Court says he shall not make it to himself; and it says the same in the case of agents, where they may employ others under them . . . . The result therefore is, that no person in whom fiduciary duties are vested shall make a profit of them by employing himself, because in doing this he cannot perform one part of his trust, namely, that of seeing that no improper charges are made. (Id. at pp. 136-137.)"
you may wish to contact the state bar regarding this possible violation of the rules of professional conduct by the attorney.
SEE http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10179&id=1144
probate code sections dealing with misconduct by trustees follow below:
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=00001-01000&file=850-859
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=15001-16000&file=15640-15645
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=15001-16000&file=16000-16015
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=16001-17000&file=16040-16042
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=16001-17000&file=16420-16421
SEE http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=17001-18000&file=17200-17211
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