What to Expect When Suing a Trustee: A Practical Guide to Trust Litigation

By JB | January 2026

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Trust litigation is complex and varies significantly by state. Consult a qualified attorney licensed in your jurisdiction before taking any legal action. This content was prepared with AI research assistance.

If you’re a trust beneficiary who believes a trustee has mismanaged assets, breached their fiduciary duty, or failed to follow the terms of a trust, you may be considering litigation. Before you proceed, it’s essential to understand what the process entails—and what it will cost you.

The Five Stages of Trust Litigation

Trust disputes that can’t be resolved informally typically proceed through five main phases. Here’s what to expect at each stage.

Stage 1: Filing Your Petition

Trust litigation begins when an interested party files a petition with the probate court. Unlike standard civil lawsuits that start with a “complaint,” most probate courts use a petition-based system.

Your petition must clearly identify:

The nature of your dispute
The specific relief you’re seeking (trustee removal, accounting, damages, etc.)
The factual and legal grounds supporting your claims

Common causes of action in trust litigation include breach of fiduciary duty, self-dealing, failure to account, and mismanagement of trust assets.

Pro tip: Many experienced attorneys recommend demanding a full accounting from the trustee before filing litigation. This step can reveal whether you have a viable case and sometimes resolves disputes without court involvement.

Stage 2: Discovery

Once the case is “at issue” (meaning both sides have filed their initial pleadings), discovery begins. This phase allows both parties to gather evidence supporting their positions.

Discovery typically includes:

Document requests — Obtaining trust documents, financial records, bank statements, and correspondence
Interrogatories — Written questions that must be answered under oath
Depositions — Sworn testimony from trustees, beneficiaries, and witnesses
Subpoenas — Court orders requiring third parties to produce records or testify
Requests for admission — Asking the other party to confirm or deny specific facts

According to multiple legal practitioners, discovery is often the longest and most expensive phase of trust litigation. Complex cases may require forensic accountants to trace assets or medical experts to address capacity questions.

Timeline note: In California, general discovery must conclude 30 days before trial, while expert discovery can continue until 15 days before trial.

Stage 3: Mediation and Settlement

Here’s something many people don’t realize: most trust disputes never reach trial. Courts actively encourage—and in many jurisdictions require—parties to attempt mediation before proceeding to trial.

Mediation involves working with a neutral third party who helps facilitate negotiations. Key characteristics of mediation include:

Confidentiality — Statements made during mediation generally cannot be used in court
Voluntary resolution — The mediator has no power to impose a decision; any agreement must be mutual
Cost savings — Settling at mediation avoids the substantial expense of trial preparation and testimony

Several California courts, including San Diego and Orange County Superior Courts, maintain dedicated probate mediation programs. Many private ADR (Alternative Dispute Resolution) organizations also specialize in estate and trust matters.

Stage 4: Trial

If mediation fails, the case proceeds to trial. During trial, both parties present evidence and arguments before a judge, who then issues a ruling.

Trust litigation trials can involve:

Witness testimony from trustees, beneficiaries, and family members
Expert witnesses (forensic accountants, medical professionals, financial advisors)
Documentary evidence including trust instruments, financial records, and communications

Important: Most trust litigation cases take 12 to 24 months from filing to resolution, depending on the complexity of the issues and court availability.

Stage 5: Appeal

A party dissatisfied with the trial court’s decision may appeal. The appellate court reviews the trial record for legal or procedural errors—it doesn’t retry the facts.

Appeals add significant time and cost to litigation. They also come with strict deadlines that vary by jurisdiction, so missing a filing window can forfeit your right to appeal entirely.

The Real Cost of Suing a Trustee

Now for the question everyone asks first: How much will this cost?

The honest answer is that trust litigation is rarely inexpensive. Here’s what the research shows.

Attorney Fees

Fee Structure	Typical Range
Hourly rates (general)	$150 – $650/hour
Average hourly rate	$250 – $550/hour
Major metropolitan areas	$350 – $600/hour
Experienced attorneys (20+ years)	$500 – $600+/hour

Sources: Attorney at Work 2024 Report; Lawyers.com surveys; Greiner Law Corp

Total Litigation Costs

Case Type	Estimated Cost
Straightforward disputes	$25,000 – $50,000
Moderate complexity	$50,000 – $100,000
Complex contested matters	$100,000 – $200,000+
Multi-year contested litigation	Can exceed $200,000

Sources: Casiano Law; industry surveys

Court Filing Fees

Filing fees vary significantly by state and petition type:

Jurisdiction	Fee Range
California trust petitions	$200 – $435
New York surrogate’s court	Varies by estate value
Oregon trustee petitions	$281
National range	$50 – $1,200

Sources: State court fee schedules

Who Actually Pays the Legal Fees?

This is where trust litigation gets complicated—and potentially frustrating for beneficiaries.

The Default Rule

Under the “American Rule,” each party generally pays their own attorney fees. However, trust litigation has important exceptions.

Trustee’s Fees

Trustees typically have the right to use trust assets to pay for their legal defense. This means the trust you’re trying to protect may be funding the trustee’s lawyers while you pay out of pocket.

This arrangement continues unless and until:

The court finds the trustee acted in bad faith
The trustee is found liable for breach of fiduciary duty
The court orders the trustee to reimburse the trust

Beneficiary’s Fees

As a beneficiary, you should generally expect to cover your own legal costs. However, you may be able to recover fees from the trust if:

Your litigation resulted in a significant benefit to the trust
You successfully proved trustee misconduct
The court exercises its equitable discretion to award fees

Conversely, if the court finds your claims were frivolous or brought in bad faith, you could be ordered to pay the trustee’s legal fees from your share of the trust.

Why Trustees Should Consider Liability Insurance

If you’re serving as a trustee—or considering whether to accept a trustee appointment—there’s a critical risk management tool you should understand: trustee liability insurance.

The Personal Liability Risk Most Trustees Don’t Anticipate

Here’s a reality that surprises many individuals who agree to serve as trustees: you can be held personally liable for your decisions, even if you acted in good faith.

Trustees face potential claims for:

Breach of fiduciary duty
Mismanagement of trust assets
Failure to diversify investments
Accounting errors or omissions
Conflict of interest
Improper or unfair distributions
Failure to follow the terms of the trust agreement

In family trust situations, these risks are amplified. Emotional dynamics between generations, sibling rivalries, and perceived favoritism can turn routine administrative decisions into contentious legal battles—regardless of whether the trustee actually did anything wrong.

What Trustee Liability Insurance Covers

Trustee Errors and Omissions (E&O) insurance—also called trustee liability insurance—is a specialized form of professional liability coverage designed specifically for individuals administering trusts.

A typical policy provides protection for:

Coverage Type	What It Pays For
Legal defense costs	Attorney fees, court costs, expert witnesses
Settlements	Negotiated resolutions with claimants
Judgments	Court-ordered damages
Administrative proceedings	Regulatory investigations or hearings

The key benefit: even if you’ve done nothing wrong, the insurance pays for your legal defense. Given that trust litigation commonly costs $50,000 to $200,000+ (as outlined earlier in this article), having coverage for legal fees alone can prevent personal financial devastation.

How Much Does Trustee Insurance Cost?

Trustee liability insurance premiums vary based on several factors:

Total value of trust assets under administration
Asset types (liquid investments vs. real estate, business interests, or hard-to-value assets)
Number of beneficiaries and complexity of distribution provisions
Claims history
Policy limits and deductible structure

Industry sources indicate that premiums typically start at a few thousand dollars annually. The most common policy limits are $1 million per claim with a $1 million aggregate, though coverage up to $10 million or more is available for larger trusts.

Can the Trust Pay for the Insurance?

In most jurisdictions, yes—trustee liability insurance premiums can be paid from trust assets as an administrative expense. This is especially clear when the trust document specifically authorizes the purchase of insurance.

Some key points:

Most states allow trust assets to pay the premium
A few states restrict direct payment but allow increased trustee fees that can cover the cost
The trust document should ideally include language authorizing insurance purchases
Transparency with beneficiaries about the coverage is recommended

Having the trust pay for this protection makes sense: it helps attract qualified trustees willing to take on the responsibility, and it protects the trust itself from claims for reimbursement of legal fees if the trustee is sued.

Important Coverage Considerations

If you’re evaluating trustee liability insurance, pay attention to these details:

Claims-Made vs. Occurrence Policies Most trustee policies are “claims-made,” meaning coverage applies to claims reported during the policy period—regardless of when the alleged error occurred. This has implications:

Prior acts before your policy’s retroactive date may not be covered
When the trust closes or you resign, you’ll need “tail coverage” to protect against future claims for past actions

What’s Typically Excluded Standard policies generally do not cover:

Intentional misconduct or fraud
Criminal acts
Situations where the trustee is also a beneficiary (a significant exclusion)
Claims arising before the policy’s retroactive date

Co-Trustee Situations If you serve as co-trustee with a trust company or institution, don’t assume their insurance covers you. Institutional trustees typically carry insurance that protects their own employees—not independent co-trustees. In a claim situation, interests can diverge quickly, leaving individual trustees to fund their own defense.

The Bottom Line on Trustee Insurance

Whether you’re a professional fiduciary or a family member who agreed to manage a loved one’s trust, the exposure is real. Defense costs alone can reach six figures, and without insurance, those costs come directly from your personal assets.

Before accepting a trustee appointment, consider:

Does the trust document authorize purchasing liability insurance?
What is the value and complexity of the trust assets?
Are there family dynamics that increase litigation risk?
Am I comfortable with the personal financial exposure if I’m not insured?

For many trustees, the peace of mind that comes from knowing they can fulfill their fiduciary duties without risking personal bankruptcy is worth far more than the annual premium cost.

Before You File: Questions to Consider

Based on my research, here are critical questions to ask yourself—and discuss with an attorney—before initiating trust litigation:

Have you demanded an accounting? This preliminary step is often required and may reveal whether litigation is warranted.
What are the trust assets worth? Litigation costs should be weighed against potential recovery. A $500,000 trust that costs $150,000 to litigate may not be worth the fight.
Can other beneficiaries join your claim? Splitting legal costs among multiple plaintiffs significantly reduces individual expense.
Is mediation a viable option? Many disputes can be resolved faster and cheaper through ADR.
What’s your realistic timeline? Plan for 12-24 months minimum, longer if the case goes to trial or appeal.
Can you document the breach? Strong evidence of trustee misconduct strengthens your case and may encourage settlement.

Final Thoughts

Trust litigation is a significant undertaking that requires careful consideration of both the legal merits and financial realities. While the courts provide remedies for beneficiaries harmed by trustee misconduct, the path to those remedies is neither quick nor inexpensive.

If you believe you have a valid claim against a trustee, your best first step is consulting with an experienced trust litigation attorney who can evaluate your specific situation and help you understand the likely costs, timeline, and probability of success.

Have questions about trust litigation? Share your thoughts in the comments below, or contact a qualified estate litigation attorney in your area.

Sources and Further Reading

This article synthesizes information from the following types of sources:

State court fee schedules (California, New York, Oregon, Michigan, Massachusetts)
Legal practice guides from trust litigation law firms
Attorney fee surveys and industry reports
Court ADR program materials
State probate codes and the Uniform Trust Code
Insurance industry resources on trustee liability coverage (including materials from Woodruff Sawyer, The Hartford, AIG, Chubb, and specialty insurance providers)

For state-specific guidance, consult your local probate court website or a licensed attorney. For trustee insurance questions, consult an independent insurance agent specializing in professional liability coverage.