De Facto Trust: Claiming to be a Trustee

Whether or not a person rightfully took trustee’s fees from a California trust depends on the terms of the trust instrument and whether or not the person was a named trustee in the document, a de facto trustee, or a trustee de son tort. Many trust instruments have provisions that outline under what terms the trustees can receive compensation for their services. When someone is not named a trustee or successor trustee, the argument over a trustee fee relies heavily on whether the individual is deemed a trustee de facto or de son tort.

A trustee de son tort has no authority to assert control over the trust assets but does so anyway. A trustee de facto, on the other hand, is someone who has at least some level of claim to be a trustee and who acts as such. A de facto trustee may be entitled to trustee’s fees for the work performed. A trustee de son tort is usually not entitled to such a fee. This is because he or she undertook the duties of the role without authorization.

If the individual is successful in claiming to be a de facto trustee, the court will then consider the following:

• Would a duly appointed trustee be entitled to a fee in the same circumstances?
• Did the de facto trustee provide legitimate services to the trust?
• Lastly, did the terms of the trust provide for a trustee’s fee?

Next Steps

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