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Do San Diego Probate Courts Order All Trustees to Post Bond?

San Diego Trust and Probate Estate Litigation

In the often complex business of trust and estate law, confusion can arise when there is a resignation or death of a trustee followed by a probate court petition for the appointment of a new trustee. The confusion may stem from the absence of records available to the new trustee, as well as from uncertainty as to what, if any, financial requirements will affect the new trustee. San Diego Probate Courts addressing petitions for appointment of a successor trustee will review a number of issues. The appointment is critical to the orderly completion and administration and distribution of the Trust. A vacancy in the office of the trustee needs to be filled.

All interested persons must receive a copy of the notice of the hearing and a copy of the petition for appointment following a trustee vacancy.

"There is a vacancy in the office of trustee in any of the following circumstances: * * * The trustee dies..." (Probate Code, § 15643(d).) "If the trust has no trustee or if the trust instrument requires a vacancy in the office of a cotrustee to be filled, the vacancy shall be filled as provided in this section." (Probate Code, § 15660(a).) "If the trust instrument provides a practical method of appointing a trustee or names the person to fill the vacancy, the vacancy shall be filled as provided in the trust instrument." (Probate Code, § 15660(b).) "A trustee is not required to give a bond to secure performance of the trustee's duties, unless any of the following circumstances occurs: ¶ (1) A bond is required by the trust instrument. ¶ (2) Notwithstanding a waiver of a bond in the trust instrument, a bond is found by the court to be necessary to protect the interests of beneficiaries. ¶ (3) An individual who is not named as a trustee in the trust instrument is appointed as a trustee by the court." (Probate Code, § 15602(a).)

"If the vacancy in the office of trustee is not filled as provided in subdivision (b) or (c), on petition of any interested person or any person named as trustee in the trust instrument, the court may, in its discretion, appoint a trustee to fill the vacancy. If the trust provides for more than one trustee, the court may, in its discretion, appoint the original number or any lesser number of trustees. In selecting a trustee, the court shall give consideration to any nomination by the beneficiaries who are 14 years of age or older." (Probate Code, § 15660(d).)

What is the Bond Requirement for the Successor Trustee?

"A trustee is not required to give a bond to secure performance of the trustee's duties, unless any of the following circumstances occurs: ¶ * * * (3) An individual who is not named as a trustee in the trust instrument is appointed as a trustee by the court." (Probate Code, § 15602(a)(3).)

If the proposed successor trustee is not nominated in the Trust instrument, a bond will be required upon the appointment. The court will need information concerning the value of the remaining trust assets in order to determine the size of the bond.

Hackard Law represents trustees as well as beneficiaries in estate-related litigation in both Northern and Southern California. We currently represent out-of-county beneficiaries in the San Diego County Probate Court. We'd be happy to review your case for free - our practice in trust, estate and probate litigation covers most of California counties. Protecting clients is our number one priority, so call us today at 916-313-3030.

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