Trustee laws

If you are selected/nominated/chosen/appointed to be the trustee of a trust, there are a host of duties which you must perform. Here is a list of those duties and a brief description of what each duty entails. It is not uncommon for a trustee to refuse, decline or resign from trusteeship given the responsibilities.



1. Duty to administer trust (Prob C §16000)


The trustee has a duty to follow the terms of the trust and the law governing the administration of trusts.


2. Duty of loyalty (Prob C §16002)


The trustee has a duty to administer the trust exclusively for the benefit of trust beneficiaries.


3. Duty of impartiality (Prob C §16003)


The trustee has a duty to not favor the interests of one beneficiary over another, except if the trust provides otherwise.


4. Duty to avoid conflict of interest (Prob C §16004)


The trustee has a duty to avoid transactions that benefit the trustee personally.


5. Duty not to require beneficiary to relieve trustee of liability (Prob C §16004.5)


The trustee cannot require a beneficiary to waive their rights as a condition of distribution.


6. Duty to not undertake adverse trust (Prob C §16005)


The trustee may not act as trustee of any other trust that has a competing interest with this trust.


7. Duty to take control of and preserve trust property (Prob C §16006)


The trustee must gather trust assets and take reasonable steps to preserve them.


8. Duty to make trust property productive (Prob C §16007)


The trustee has a duty, subject to certain qualifications, to make the trust assets profitable.


9. Duty to keep trust property separate and identified (Prob C §16009)


The trustee has a duty to keep the assets and debts of the trust separate from the trustee own. In other words, the trustee should not commingle funds.


10. Duty to enforce claims (Prob C §16010)


The trustee must take reasonable actions to pursue assets that may be owed to the trust.


11. Duty to defend actions (Prob C §16011)


The trustee has the duty to take actions to prevent a loss to the trust, such as by defending a lawsuit.


12. Duty not to delegate (Prob C §16012)


Subject to certain exceptions, the trustee must perform actions on behalf of the trust rather than having others act on behalf of the trust.


13. Co-trustee Duties (Prob C §16013)


If the trustee serves along with a co-trustee, then each trustee has a duty to participate in the administration and prevent the other from committing a breach of the trust.


14. Duty to use special skills (Prob C §16014)


In managing the trust property, the trustee must use at least ordinary business ability. However, if the trustee has special skills, the trustee will be held to a higher standard of care.


15. Duty to provide information to beneficiaries (Prob C §§16060-16064)


The trustee has a number of duties related to providing financial and other information to beneficiaries.


16. Discretionary powers to be used reasonably (Prob C §§16080-16081)


Even if the trust provides that a particular action is entirely within the trustee's discretion, the trustee has a duty to act reasonably in exercising that discretion.


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If the trustee then breaches of these aforementioned duties, they are subject to removal.


If you have any questions please call my office at (408) 866-8382  for a free consultation or email me at s.miri@mirilaw.com.