How can a beneficiary remove a trustee in North Carolina probate cases when mismanagement or breach of fiduciary duty is suspected?
1. Detailed Answer
When a beneficiary suspects a trustee has mismanaged trust assets or breached a fiduciary duty, North Carolina law provides a clear path to seek removal. You start by reviewing the trust document. Some trusts include procedures for trustee replacement. If the document does not provide a workable solution, you can turn to the North Carolina Trust Code.
Under G.S. 36C-8-802, a court may remove a trustee if the trustee has committed a serious breach of trust, a lack of cooperation endangers the trust, or other factors justify removal. To begin, gather evidence of mismanagement. This might include late or incomplete accountings, unauthorized transactions, or clear self-dealing.
Next, file a petition with the Clerk of Superior Court in the county where the trust is being administered. In that petition, you should:
- Identify the trust and all parties.
- Describe the suspected mismanagement or breach of duty.
- Cite G.S. 36C-8-802 for trust removal.
- Request removal of the trustee and appointment of a successor.
Once the petition is on file, the court will set a hearing. The trustee has a right to notice and an opportunity to respond. You can also ask the court to order interim accountings or to surcharge the trustee under G.S. 36C-8-1001 if assets are missing or wasted.
If the trust has become part of an estate administration, you may also consider filing under G.S. 28A-14-9. That statute allows removal of an executor or administrator for neglect of duty or misconduct. It uses similar procedures: petition, notice, hearing, and surcharge if appropriate. For more details on surcharge actions, see G.S. 28A-15-1.
Throughout this process, document every concern. Keep copies of statements, trust reports, emails, and letters. A clear record helps the court see the trustee’s conduct and decide whether removal serves the trust’s best interests.
2. Key Steps to Remove a Trustee
- Review the trust instrument for removal clauses.
- Gather evidence of mismanagement or breach of fiduciary duty.
- Consult the North Carolina Trust Code, especially G.S. 36C-8-802 (link).
- Prepare and file a petition in the Clerk of Superior Court.
- Serve the trustee with notice of the petition and hearing date.
- Attend the court hearing with your evidence and witnesses.
- Request surcharge or interim accountings if assets are at risk (see G.S. 36C-8-1001: link).
- Seek appointment of a qualified successor trustee if removal is granted.
Call to Action
Removing a trustee can protect your inheritance and preserve trust assets. The process involves clear steps and strict deadlines under North Carolina law. Our attorneys at Pierce Law Group have guided many beneficiaries through trust disputes. To discuss your situation and learn how we can help, email us at intake@piercelaw.com or call (919) 341-7055.
