Trust Instrument Trumped General Equitable Probate Code Sections.
In Thorpe v. Reed, Case No. H037330 (6th Dist. Dec. 13, 2012) (published), plaintiff was a successor trustee under a trust instrument prohibiting compensation to a successor trustee. Plaintiff sought to recover $108,771.17 from the estate for trustee and trustee’s attorney’s fees. The court awarded $51,285.63 over an objection based on the trust instrument prohibition.
The appellate court reversed, deciding the objection was well-taken.
Probate Code section 15680(a) provides that the trust instrument normally determines compensation, such that a successor trustee has to refuse appointment or condition appointment on the court modifying a no-payment clause. Successor trustee did not do either, such that the no-payment clause governed. It was not trumped by general equitable provisions codified at sections 15642(e) or 17206.