There are many kinds of trusts, but in the context of estate planning, a "trust" most commonly refers to a living trust, also called an inter vivos trust. A living trust is similar to a Will. It is a written document that contains instructions regarding how the client wants his assets held during his or her lifetime and distributed after his or her death. The person who creates a trust is called a settlor or trustor. The person who manages the trust is called the trustee. The persons or entities who receive the trust property are called the beneficiaries.

Yes. In fact, in a typical living trust situation, the person who creates the trust wears three hats: he or she is the settlor, trustee, and beneficiary. As long as the settlor is alive, he or she will usually serve as trustee, managing the trust assets for his or her own benefit. If the settler becomes ill or infirm, the person named as the successor trustee can assume the office of trustee and assume management of trust property for the benefit of the settlor, who remains the beneficiary of the trust for as long as he or she lives. Upon the death of the settlor, the successor trustee must distribute the assets to the beneficiaries as set forth in the trust instrument.

The trustee is responsible for managing trust property and following the instructions of the settlor as set forth in the trust instrument. The exact duties of the trustee will vary depending on the trust assets that are owned by the trust. If the trust owns real property, then the trustee will be responsible for managing the property, or if the trust has bank accounts and investments, then the trustee will oversee these items. And finally, the trustee will distribute the remainder of the trust to the trust beneficiaries following the death of the settlor.

A trust contest is a legal proceeding to invalidate, or set aside, a trust instrument. A trust can be contested on grounds similar to a will contest. Two common grounds include the settlor’s lack of mental capacity to create the trust document and the settlor being improperly influenced by family members or friends to make trust gifts that he or she would not have otherwise made. A trust can be contested, even if the trust contains “a no contest clause.” A no contest clause is intended to penalize a beneficiary for unsuccessfully challenging the trust. If the contest is successful, the no contest clause is of no effect.

A trustee has a duty to follow the terms of the trust, and to provide information about trust administration to the beneficiaries. If the trustee fails to follow the trust instrument or fails to provide information about trust administration, a trust beneficiary may file a petition with the Superior Court seeking orders to compel the trustee to follow the trust instrument or to provide the information.

If a trustee has mismanaged trust assets resulting in harm to the beneficiaries, the superior court can order the trustee to compensate the trust beneficiaries from the trustee's own personal assets. Such an action is called a surcharge action. A surcharge action can be filed by one or more trust beneficiaries. If the superior court finds that the trustee has financially harmed the trust, the court can order the trustee to reimburse the trust from his or her personal assets.

Yes. When a trustee is not properly handling the trust, a beneficiary may file a petition asking the Superior Court to remove the trustee. The California Probate Code sets forth specific reasons for the removal of a trustee, including embezzlement, mismanagement, waste of trust assets, incapacity, or if the court otherwise finds that removal is necessary to protect the beneficiaries of the trust.

The first step is filing a petition with the superior court asking the court to issue orders compelling the trustee to comply with the terms of the trust, or to provide the accounting information, or surcharging the trust, or simply removing the trustee. Because these issues are complicated and time consuming, it is best to seek the advice of an experienced probate attorney before any action is taken.