2005 California Probate Code Sections 15640-15645 Article 3. Resignation and Removal of Trustees

SECTION 15640-15645

15640.  A trustee who has accepted the trust may resign only by one
of the following methods:
   (a) As provided in the trust instrument.
   (b) In the case of a revocable trust, with the consent of the
person holding the power to revoke the trust.
   (c) In the case of a trust that is not revocable, with the consent
of all adult beneficiaries who are receiving or are entitled to
receive income under the trust or to receive a distribution of
principal if the trust were terminated at the time consent is sought.
  If a beneficiary has a conservator, the conservator may consent to
the trustee's resignation on behalf of the conservatee without
obtaining court approval.  Without limiting the power of the
beneficiary to consent to the trustee's resignation, if the
beneficiary has designated an attorney in fact who has the power
under the power of attorney to consent to the trustee's resignation,
the attorney in fact may consent to the resignation.
   (d) Pursuant to a court order obtained on petition by the trustee
under Section 17200.  The court shall accept the trustee's
resignation and may make any orders necessary for the preservation of
the trust property, including the appointment of a receiver or a
temporary trustee.
15641.  The liability for acts or omissions of a resigning trustee
or of the sureties on the trustee's bond, if any, is not released or
affected in any manner by the trustee's resignation.
15642.  (a) A trustee may be removed in accordance with the trust
instrument, by the court on its own motion, or on petition of a
settlor, cotrustee, or beneficiary under Section 17200.
   (b) The grounds for removal of a trustee by the court include the
   (1) Where the trustee has committed a breach of the trust.
   (2) Where the trustee is insolvent or otherwise unfit to
administer the trust.
   (3) Where hostility or lack of cooperation among cotrustees
impairs the administration of the trust.
   (4) Where the trustee fails or declines to act.
   (5) Where the trustee's compensation is excessive under the
   (6) Where the sole trustee is a person described in subdivision
(a) of Section 21350, whether or not the person is the transferee of
a donative transfer by the transferor, unless, based upon any
evidence of the intent of the settlor and all other facts and
circumstances, which shall be made known to the court, the court
finds that it is consistent with the settlor's intent that the
trustee continue to serve and that this intent was not the product of
fraud, menace, duress, or undue influence.  Any waiver by the
settlor of this provision is against public policy and shall be void.
  This paragraph shall not apply to instruments that became
irrevocable on or before January 1, 1994.  This paragraph shall not
apply if any of the following conditions are met:
   (A) The settlor is related by blood or marriage to, or is a
cohabitant with, any one or more of the trustees, the person who
drafted or transcribed the instrument, or the person who caused the
instrument to be transcribed.
   (B) The instrument is reviewed by an independent attorney who (1)
counsels the settlor about the nature of his or her intended trustee
designation and (2) signs and delivers to the settlor and the
designated trustee a certificate in substantially the following form:
I, _______________________________________, have reviewed
               (attorney's name)
____________________________ and have counseled my client,
    (name of instrument)
____________________, fully and privately on the nature and
   (name of client)
legal effect of the designation as trustee of _________________
                                               (name of trustee)
contained in such instrument.  I am so disassociated from the
interest of the person named as trustee as to be in a position to
advise my client impartially and confidentially as to the
consequences of the designation.  On the basis of this counsel, I
conclude that the designation of a person who would otherwise be
subject to removal under paragraph (6) of subdivision (b) of
Section 15642 of the Probate Code is clearly the settlor's intent
and such intent is not the product of fraud, menace, duress,
or undue influence.
_____________________________       __________________"
      (Name of Attorney)                    (Date)
This independent review and certification may occur either before or
after the instrument has been executed, and if it occurs after the
date of execution, the named trustee shall not be subject to removal
under this paragraph.  Any attorney whose written engagement signed
by the client is expressly limited to the preparation of a
certificate under this subdivision, including the prior counseling,
shall not be considered to otherwise represent the client.
   (C) After full disclosure of the relationships of the persons
involved, the instrument is approved pursuant to an order under
Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of
Division 4.
   (7) For other good cause.
   (c) If, pursuant to paragraph (6) of subdivision (b), the court
finds that the designation of the trustee was not consistent with the
intent of the settlor or was the product of fraud, menace, duress,
or undue influence, the person being removed as trustee shall bear
all costs of the proceeding, including reasonable attorney's fees.
   (d) If the court finds that the petition for removal of the
trustee was filed in bad faith and that removal would be contrary to
the settlor's intent, the court may order that the person or persons
seeking the removal of the trustee bear all or any part of the costs
of the proceeding, including reasonable attorney's fees.
   (e) If it appears to the court that trust property or the
interests of a beneficiary may suffer loss or injury pending a
decision on a petition for removal of a trustee and any appellate
review, the court may, on its own motion or on petition of a
cotrustee or beneficiary, compel the trustee whose removal is sought
to surrender trust property to a cotrustee or to a receiver or
temporary trustee.  The court may also suspend the powers of the
trustee to the extent the court deems necessary.
   (f) For purposes of this section, the term "related by blood or
marriage" shall include persons within the seventh degree.
15643.  There is a vacancy in the office of trustee in any of the
following circumstances:
   (a) The person named as trustee rejects the trust.
   (b) The person named as trustee cannot be identified or does not
   (c) The trustee resigns or is removed.
   (d) The trustee dies.
   (e) A conservator or guardian of the person or estate of an
individual trustee is appointed.
   (f) The trustee files a petition for adjudication of bankruptcy or
for approval of an arrangement, composition, or other extension
under the federal Bankruptcy Code, or a petition filed against the
trustee for any of these purposes is approved.
   (g) A trust company's charter is revoked or powers are suspended,
if the revocation or suspension is to be in effect for a period of 30
days or more.
   (h) A receiver is appointed for a trust company if the appointment
is not vacated within a period of 30 days.
15644.  When a vacancy has occurred in the office of trustee, the
former trustee who holds property of the trust shall deliver the
trust property to the successor trustee or a person appointed by the
court to receive the property and remains responsible for the trust
property until it is delivered.  A trustee who has resigned or is
removed has the powers reasonably necessary under the circumstances
to preserve the trust property until it is delivered to the successor
trustee and to perform actions necessary to complete the resigning
or removed trustee's administration of the trust.
15645.  If the trustee of a trust that is not revocable has refused
to transfer administration of the trust to a successor trust company
on request of the beneficiaries described in subdivision (c) of
Section 15640 and the court in subsequent proceedings under Section
17200 makes an order removing the existing trustee and appointing a
trust company as successor trustee, the court may, in its discretion,
award costs and reasonable attorney's fees incurred by the
petitioner in the proceeding to be paid by the trustee or from the
trust as ordered by the court.

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