Hi, my name is John T. Anderson. Welcome to my blog! I have been practicing law in California since 1975 and have been the Chairman of the Estate Planning and Probate Section of the Long Beach Bar Association since the mid-1980s. I'm also certified by the State Bar of California Board of Legal Specialization as a specialist in Estate Planning, Trust and Probate Law. On this blog, you will find articles written by me regarding estate planning and probate in California. Many of these articles address recent changes in the law and summaries of the Long Beach Bar Association’s Estate Planning and Probate Section meetings. I hope that you find these articles helpful. If you would like more information about me or my law office, please visit my website at or contact my office at 562.424.8619.

Thursday, January 10, 2013

Thorpe v. Reed: Do California Probate Code Sections 15642 and 17206 Provide Authority for a Successor Trustee to be Compensated When the Trust Prohibits Compensation?

Thorpe v. Reed, (Dec. 13, 2012, H037330), ___Cal.App.4th___ [2012 Cal.App. Lexis 1272], involved provisions of a special needs trust which prohibited trustee fees to a successor trustee.

Reed was injured in two different automobile v. individual accidents. A special needs trust was established to hold a home and funds from the resulting litigation.

Ultimately, the trustee was replaced by the public guardian as temporary trustee. The public guardian was replaced by a professional fiduciary who was appointed temporary successor trustee. After a series of hearings and continuances, with the family, the trust beneficiary, and the public guardian all suggesting that the conservatorship was no longer necessary and that a family member could act as trustee, all opposed by the professional fiduciary, the trial court appointed the professional fiduciary as permanent trustee. The trial court cited California Probate Code sections 15642, subdivision (e), and 17206 as authority for the court to award fees in spite of the specific prohibition of fees to a successor trustee in the trust, and the trial court awarded fees to the successor trustee – the professional fiduciary. 

The Court of Appeal, Sixth Appellate District, reversed the trial court and held that there was no authority for a court to award fees to a successor trustee who accepted appointment as trustee and acted in that capacity, but could have declined the appointment, where the trust itself restricted the amount to be paid or prohibited it. The Court pointed out that the trial court’s ruling was contrary to the plain language of California Probate Code section 15680, which limits trustee compensation to the amount fixed by the trust. 

                                       John T. Anderson, Section Chair
                                       LB Bar Assoc. Estate Planning, Trust, and Probate Law Section
                                       Certified Specialist in Estate Planning, Trust, and Probate Law by the
                                                    State Bar of California Board of Legal Specialization

Copyright © 2013 by John T. Anderson
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