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How much can executor of living trust take in California?

San Jose, CA |

My ex-husband had a living trust in which our daughter and his daughter from first marriage are the beneficiaries. In the trust it is stated that the executor was to get 1.5%. The executor had me and his first wife believing he could take 10% but would settle for 5%. We were not ok with this but signed that it was ok. We felt he would take 10% if we didnt. My daughter was 17 at the time. She is now 18 and wants to sue executor for the 31/2 percent more that he took. I was told by an attorney friend that legally he could ask for more than the 1.5% only by going to court in front of judge. So my question is do I have my facts correct and legally does my daughter have a case now that she is 18? If so we need a good lawyer because that additional 3.5% is approx 40,000. Attorney also took over

Attorney Answers 3


  1. In most cases, trustees are limited to fees that are "reasonable." Some states have statutory guidelines. What concerns me in your situation is that it SOUNDS LIKE you agreed to a higher fee. Even if you did so only because you were afraid of an even higher fee, it you agreed to the 5%, then you may be stuck with that. Check with a California probate attorney to make sure and see if there is anything else that you can do.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!


  2. If you mean what can the Trustee take as a fee then you will need to go in front of a judge to determine if the fee was fair and reasonable and considering you both signed the agreement, no matter what your explanation is now, you might be stuck with the 5%.

    Legal disclaimer: This answer does not constitute legal advice. I am admitted to practice law in the State of Missouri only, and make no attempt to opine on matters of law that are not relevant to Missouri. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship. less


  3. Generally, the provisions of the trust made by your ex-husband control what the trustee can charge for the administration of the trust once the maker of the trust dies. In California, the law of living trusts is contained in the Probate Code. Probate Code Sections 15680-82:

    15680. (a) Subject to subdivision (b), if the trust instrument
    provides for the trustee's compensation, the trustee is entitled
    to be compensated in accordance with the trust instrument.

    (b) Upon proper showing, the court may fix or allow greater
    or lesser compensation than could be allowed under the terms of the
    trust in any of the following circumstances:

    (1) Where the duties of the trustee are substantially
    different from those contemplated when the trust was created.

    (2) Where the compensation in accordance with the terms
    of the trust would be inequitable or unreasonably low or high.

    (3) In extraordinary circumstances calling for equitable
    relief.

    (c) An order fixing or allowing greater or lesser compensation
    under subdivision (b) applies only prospectively to actions taken in
    administration of the trust after the order is made.

    So if the trust states the rate as 1.5%, the trustee/executor would have needed to get court approval, under subsection (b)(2). It allows the court to change compensation "Where the compensation in accordance with the terms of the trust would be inequitable or unreasonably low or high." See also sub section (c).

    I strongly recommend you consult with a local attorney to determine the best course of action.

    If you found this helpful, please click the helpful button.

    Mr.Scalise may be reached at 805-244-6850 or by email (caig@scaliselawfirm.com). My responses to questions posted here intended as helpful legal information not legal advice. The information I post does not create an attorney-client relationship. Mr. Scalise is licensed to practice law in California. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state, and retain him/her. Mr. Scalise provides “unbundled” services for specific assistance with a specific issue.O work with clients throughout California.

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