Over the years, many beneficiaries have asked me to remove a trustee for various reasons, e.g. selling assets for below-market value, failure to provide an accounting, self-dealing, unreasonably delaying distributions, failure to follow the trust's terms, etc. The issue though is that many courts are reluctant, if not unwilling, to remove a trustee without an evidentiary hearing, i.e. a trial. Scheduling and preparing for an evidentiary hearing typically takes many months. Documents will need to be produced and reviewed, depositions will need to be taken, etc. Additionally, even if the parties have completed discovery, the court's calendar may not permit the scheduling of an evidentiary hearing in a prompt fashion.
In light of the foregoing, the practical solution is to seek the immediate suspension of a trustee with their removal subject to an evidentiary hearing.
I have seen courts open to this request because suspending the trustee will preserve the status quo and protects the beneficiaries from future potential misconduct by the trustee. While a suspended trustee would naturally want to continue acting as trustee, the suspension is obviously not permanent. The suspended trustee can be reinstated if exonerated at trial or sooner if the parties reach a settlement.
If a trustee is suspended, the court will typically require the suspended trustee to render an accounting from the date they became trustee to the date of suspension. Moreover, the court will require the suspended trustee to turn over all trust assets to the interim trustee.
Of note, a court can suspend a trustee on its own motion even if no petition has been presented to the court for the trustee's removal. Schwartz v Labow (2008) 164 CA4th 417. Still, this would definitely be the exception as opposed to the rule for removing a trustee. Courts are reluctant to act on their own motion absent compelling circumstances.
