# Sued as Trustee and as an Individual? Who Pays for Your Personal Defense

> McKinley v. Harris (2026): no equitable fee award for a trustee's personal defense. The statutes and trust-benefit routes that still pay a trustee's lawyer.

Source: https://ridleylawoffices.com/trustee-sued-personally-attorney-fees-california/
Published: 2026-10-19
Author: Estate Planning Attorney Eric Ridley

A California probate court can’t use its equitable powers to make a beneficiary pay the lawyer who defended you personally. That’s the holding of [*McKinley v. Harris*](https://courts.ca.gov/opinion/published/2026-10-13/g066032) (Oct. 13, 2026, G066032) ___ Cal.App.5th ___, a published decision from the Fourth District, Division Three. If a beneficiary names you in a petition both as trustee and as an individual, the fees you run up defending yourself stay with you unless a statute, the trust, or some other agreement says otherwise, or the defense also helped the trust.

The trustee in *McKinley* came out ahead on the petition. The beneficiary dismissed it, and the probate court entered judgment in her favor. The $83,434.50 she incurred in personal attorney fees stayed with her anyway.

**$83,434.50**

Personal attorney fees the trustee asked the beneficiary to pay, and lost

**$656,929.02**

Fees and costs the co-trustees sought for the trust in a separate motion, also denied

**$238.60**

What she did recover: her costs, which Prob. Code § 1002 allows

## What happened in McKinley v. Harris

Erin Harris and her husband, Scott, were co-trustees of the McKinley Family Living Trust, which Harris’s parents created in 2010. Harris and her two brothers were the three equal beneficiaries, and the trust owned two hotels in San Clemente.

In May 2024, her brother Andrew McKinley filed a verified petition under [Prob. Code, § 850](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=850). He named both trustees in their capacity as trustees, and he named Harris a second time as an individual. He alleged the trustees were delaying the trust’s division and pushing to sell the hotels without good reason, and that they hadn’t produced the documents he asked for about the sale. He wanted his one-third share of each hotel moved into his own trust, plus double damages under [Prob. Code, § 859](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=859). He also recorded a lis pendens on each hotel. The trustees later told the court a buyer had offered $15.5 million for the hotels.

By September 2024 he had withdrawn both lis pendens. In October he asked to dismiss the petition without prejudice, and the court granted that in December 2024 and entered judgment for the trustees and for Harris individually. (The parties later disputed whether that judgment should be replaced with a dismissal, and the opinion says the record doesn’t show how that came out.) In February 2025, two fee motions followed.

| Date | Event |
| --- | --- |
| May 2024 | Beneficiary files a § 850 petition against the co-trustees as trustees and against Harris individually, and records two lis pendens |
| September 2024 | Beneficiary withdraws both lis pendens |
| October to December 2024 | Beneficiary requests dismissal without prejudice. The court grants it and enters judgment for the trustees and for Harris individually |
| August 2025 | Orange County Superior Court denies both fee motions and grants Harris her costs |
| October 13, 2026 | Court of Appeal affirms the denial of Harris’s personal fee motion, certified for publication |
| October 14, 2026 | Opinion modified to correct the caption, with no change in the judgment |

## The two fee motions

The co-trustees, through their own lawyers, asked for $656,929.02 the trust had spent defending the petition and the lis pendens, to be charged against the brother’s share. Harris also filed a separate motion, solely as an individual, for the $83,434.50 she had paid her personal lawyer. Both motions rested on the probate court’s equitable power. Neither pointed to a statute that authorized the fees.

The probate court denied both. On the trustees’ motion, it said they “might be entitled to reimbursement for attorney’s fees out of trust property pursuant to Probate Code section 15684 and 16243,” but that a request like that “must be made by petition,” not by a post-judgment fee motion. That ruling wasn’t appealed, and the Court of Appeal noted it wasn’t before the court. Only Harris’s personal motion went up.

## The rule: Code Civ. Proc., § 1021 governs probate too

California follows the American rule. Under [Code Civ. Proc., § 1021](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=1021), each side pays its own lawyer unless a statute or an agreement shifts the fees. The Court of Appeal held that this rule applies in probate proceedings, citing *Estate of Myers* (1964) 230 Cal.App.2d 465, 467, and that a probate court’s equitable powers don’t override it when the only thing at stake is the trustee’s own money.

Harris relied on a line of cases letting probate courts charge fees against a beneficiary’s share when the beneficiary brings a bad-faith case against the trust: *Rudnick v. Rudnick* (2009) 179 Cal.App.4th 1328, *Estate of Ivey* (1994) 22 Cal.App.4th 873, and *Pizarro v. Reynoso* (2017) 10 Cal.App.5th 172. The court read every one of them as protecting the trust. In each, the trustee spent money defending the trust, and the court moved that cost onto the beneficiary who caused it. Harris was asking for something different: reimbursement of money she spent defending herself, “independent of any benefit to the Trust.”

The court put the line this way, quoting *Bruno v. Hopkins* (2022) 79 Cal.App.5th 801: the probate court “has broad equitable powers to protect the trust estate,” and “not the trustee’s personal assets.” With no statute and no contract behind her, the motion failed.

## What still pays a trustee’s lawyer

The opinion itself lists other routes to fees. Harris didn’t argue any of them, which is part of why she lost.

| Route | What it covers | Who pays |
| --- | --- | --- |
| [Prob. Code, § 15684](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15684) and [§ 16243](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=16243) | Expenses properly incurred administering or protecting the trust, including lawyers the trustee hires for the trust. Expenses not properly incurred are repaid only to the extent they benefited the trust. | The trust. The court can charge it against a bad-faith beneficiary’s share (*Rudnick*). |
| Personal defense that also benefited the trust | A trustee’s own defense that cleared charges calling her fitness to administer the trust into question (*Hollaway v. Edwards* (1998) 68 Cal.App.4th 94, 99), or personal advice that incidentally benefited the trust (*Powell v. Tagami* (2018) 26 Cal.App.5th 219, 236 to 237) | The trust |
| [Prob. Code, § 17211, subd. (a)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=17211) | A beneficiary’s contest of the trustee’s account that the court finds was without reasonable cause and in bad faith | The contesting beneficiary, charged against their interest in the trust and personally for any shortfall |
| [Code Civ. Proc., § 128.5](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=128.5) | Reasonable expenses, including attorney fees, caused by “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay” | The party, its lawyer, or both |
| A fee clause in the trust or another agreement | Whatever the clause says | Depends on the wording |
| [Prob. Code, § 1002](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=1002) | Costs only. Filing fees and similar items, not attorney fees. | Any party, or the estate, “as justice may require” |

The trust-benefit route and the personal-defense route are different requests, and the probate court in *McKinley* said the trust-side request goes by petition. A petition naming you personally also usually alleges you did something wrong as trustee. If your defense knocks out a claim that you can’t be trusted to keep serving, *Hollaway* says that defense benefited the trust. The trustee there asked for reimbursement from the trust by petition, under Prob. Code, §§ 15684 and 17200, subdivision (b)(9), and got it. Make that argument, with that authority, instead of asking the court for equity.

## If you’re serving as trustee now

In *McKinley*, one of the allegations was that the trustees didn’t produce the documents the beneficiary asked for about the hotel sale. The court never decided whether that was true, but it’s the kind of allegation that turns a family disagreement into a filed case.

California makes keeping beneficiaries informed a duty. Under [Prob. Code, § 16060](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=16060), “the trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration,” and [§ 16061](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=16061) requires you to answer a beneficiary’s reasonable request for information about their interest. Do those things before anyone asks a judge to make you.

**When a beneficiary starts asking pointed questions**

- Answer reasonable information requests in writing, and keep a copy of what you sent and when.
- Keep trust money and records separate from yours. Every transaction should trace to a statement.
- Before you sell a major asset, tell the beneficiaries what you plan and why.
- Read the trust’s provisions on attorney fees, indemnity, and costs, so you know what the instrument covers.
- Hire one lawyer for the trust and decide, early, whether you need your own lawyer as an individual. Bill those two tracks separately, as the *McKinley* trustees did.

If a petition names you personally, the trust may pay for the trust’s defense and still not pay for yours. Find out where that line falls in your trust now. For the broader rules on paying lawyers from the trust, see [can a trustee pay themselves and hire a lawyer with trust money](https://ridleylawoffices.com/trustee-fees-and-attorney-fees-california/) and [can a beneficiary be charged for the trustee’s legal fees](https://ridleylawoffices.com/beneficiary-pay-trustee-legal-fees-california/).

## Is McKinley final?

Not yet. A published Court of Appeal decision generally becomes final 30 days after it’s filed, and a party then has 10 days to ask the California Supreme Court for review ([Cal. Rules of Court, rule 8.264(b)](https://courts.ca.gov/cms/rules/index/eight/rule8_264); [rule 8.500(e)](https://courts.ca.gov/cms/rules/index/eight/rule8_500)). The October 14 modification only corrected the caption and didn’t change the judgment. As of October 19, 2026, the official reporter citation hadn’t been assigned. Until the Supreme Court acts, or the time to seek review runs out, treat it as published law that could still be reviewed.

## Talk to a real California trust attorney

If a beneficiary has named you in a petition, or you can see one coming, I’ll read the trust’s fee provisions with you and tell you which of your costs the trust can carry and which it can’t. **[Talk to Eric Ridley](https://ridley.click/eric-30)** is a free 30-minute consultation by phone or Zoom, anywhere in California. Or call [(805) 244-5291](tel:+18052445291).

Sources

- [*McKinley v. Harris* (Oct. 13, 2026, G066032), California Courts](https://courts.ca.gov/opinion/published/2026-10-13/g066032) ([PDF](https://www4.courts.ca.gov/opinions/documents/G066032.PDF); [Justia](https://law.justia.com/cases/california/court-of-appeal/2026/g066032m.html))
- [Order modifying opinion, Oct. 14, 2026](https://www4.courts.ca.gov/opinions/documents/G066032M.PDF)
- [Code Civ. Proc., § 1021](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=1021)
- [Prob. Code, § 15684](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=15684)
- [Prob. Code, § 16060](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=16060)
- [Prob. Code, § 17211](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=17211)

## Frequently asked questions

### Can a California trustee use trust money to pay a lawyer to defend claims against them personally?

Only if the defense also benefited the trust, or a statute or the trust instrument allows it. In *McKinley v. Harris* (2026), the Court of Appeal held a probate court has no equitable power to award a trustee fees incurred solely for her personal defense. *Hollaway v. Edwards* (1998) 68 Cal.App.4th 94 allows fees when the personal defense also protected the trust.

### Can a trustee make a beneficiary pay the trustee’s attorney fees after winning?

Not for winning alone. California follows the American rule (Code Civ. Proc., § 1021). A court can charge a trustee’s fees against a beneficiary’s share when the beneficiary brought an unfounded case against the trust in bad faith (*Rudnick v. Rudnick* (2009) 179 Cal.App.4th 1328), or when a bad-faith accounting contest falls under Prob. Code, § 17211, subdivision (a).

### What is a Probate Code section 850 petition?

A § 850 petition asks the probate court to decide who owns property claimed by a trust or estate, or by someone else, and to order it transferred. Beneficiaries use it to recover property they say a trustee took or is holding wrongly. See the [§ 850 petition glossary entry](https://ridleylawoffices.com/estate-planning-glossary-california/probate-code-850-petition/).

### Does Probate Code section 1002 let the court award attorney fees?

No. Section 1002 covers costs, not attorney fees. In *McKinley v. Harris*, the trustee recovered her $238.60 in costs but none of her $83,434.50 in fees, and the Court of Appeal described § 1002 as governing “only costs.”

### How does a trustee get reimbursed for legal fees spent on the trust?

Under Prob. Code, §§ 15684 and 16243, a trustee is repaid from the trust for expenses properly incurred administering and protecting it. In *McKinley*, the probate court said that request must be made by petition, not by a post-judgment fee motion. A court can charge those fees against a bad-faith beneficiary’s share.

Related reading: [what a trustee does in California](https://ridleylawoffices.com/what-is-a-trustee-california/), [trustee accountings](https://ridleylawoffices.com/estate-planning-glossary-california/trustee-accounting/), [trustee removal](https://ridleylawoffices.com/estate-planning-glossary-california/trustee-removal/), and [successor trustees](https://ridleylawoffices.com/estate-planning-glossary-california/successor-trustee/).

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**Written by Eric D. Ridley.** Estate Planning Attorney at Ridley Law, serving Ventura County since 2010. Last reviewed October 19, 2026. [Learn more about Eric →](https://ridleylawoffices.com/about/)