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.
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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%.
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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
(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.
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