(Super. Ct. No. P078928) (Ventura County) Glen M. Reiser, Judge.
The opinion of the court was delivered by: Perren, J.
CERTIFIED FOR PUBLICATION
Appellants Heidi J. Kasperbauer, Kirsten N. Roehler and Kimberly J. Haugh are the beneficiaries of a trust. They seek and receive orders substituting a successor trustee in place of respondent William Fairfield, who had been the trustee for over 24 years. They also seek an order directing Fairfield to provide an accounting. The trial court orders the accounting and withholds $75,000 from the trust to cover Fairfield's anticipated attorney fees and costs associated with its preparation. At appellants' request, the court terminates the trust and distributes the corpus to appellants even though the accounting has not been completed.
Following distribution, Fairfield seeks additional funds to pay unanticipated fees and costs incurred in completing the accounting and responding to appellants' objections. The court withholds an additional $25,000 from the proceeds of the sale of real property held by the trust "for the possible payment of trustee expenses in completing the accounting." Fairfield's attorney fees and costs exceed the amounts withheld. On recommendation of the referee to whom the cause was referred, the trial court orders, inter alia, that appellants return $250,000 of the trust distribution to provide a fund from which to pay Fairfield's attorney fees and costs in completing and defending the accounting.
The beneficiaries appeal the order contending that pendente lite attorney fees are not authorized by the Probate Code and that they cannot be compelled to pay additional attorney fees and costs because the trust has been terminated and the assets of the trust distributed. They also assert that an award of attorney fees is premature because the court has not yet determined the merits of their objections to the accounting and their claim for surcharges against Fairfield.We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 1980, Verna-Jo Johnson-Roehler (Johnson) and Frederick G. Roehler II (Roehler), husband and wife, established the Johnson-Roehler Trust. Appellants Heidi J. Kasperbauer, Kirsten N. Roehler and Kimberly J. Haugh are the adult children of Johnson and Roehler. Johnson died on January 2, 1981. Roehler was convicted of her murder and is incarcerated for life without the possibility of parole.*fn1 On October 2, 1981, Roehler executed a first amendment to the Trust resigning as trustee and naming respondent William Fairfield as successor trustee.
Upon Johnson's death, the Johnson-Roehler Trust was divided into the Decedent's Trust and the Survivor's Trust. The Decedent's Trust (Trust) provides that the Trust shall terminate and its assets be distributed when the youngest beneficiary reaches the age of 25 years. That occurred on July 5, 1999. Fairfield made periodic withdrawals from the Trust for costs of administration, including trustee compensation and attorney fees. He did not provide a formal accounting or make any distributions of the Trust estate to the beneficiaries.
On March 18, 2005, appellants filed a petition requesting that the court order Fairfield to prepare an accounting and surcharge him for funds he had withdrawn from the Trust for compensation, attorney fees and other costs. Appellants filed additional petitions requesting that the court remove Fairfield as trustee, appoint Janice Martin as successor trustee, terminate the Trust and distribute the Trust corpus to appellants. On December 5, 2005, the court ordered Fairfield removed as trustee, appointed Martin as successor trustee, and directed Fairfield to file an accounting for all Trust activity for the period January 1, 1981, through October 12, 2005, on or before January 17, 2006. The court terminated the Trust and ordered that approximately $1 million in Trust assets be distributed to appellants. The court withheld $75,000 from the Trust distribution to pay attorney fees incurred by Fairfield in preparing and defending the accounting. No appeal was taken from the order.
At the December 5 hearing, prior to ordering the termination of the Trust, the following colloquy occurred:
The Court: "I don't think the proposed trustee would want-this is mandatory, less 75 or whatever the number is. Everything goes-how are they going to administer anything? How are you going to pay your trustee?
"MS. REINHARDT [counsel for appellants]: . . . I think any questions that the successor trustee has with respect to whether or not my client would agree that her withheld [sic] can be increased by any set amount so that there's no question that too much has been distributed and they have to put it back is something between Miss Martin and my clients. There's no reason . . . the decedent's trust has been terminated that Miss Martin has to retain any assets.
"MR. ONSTOT [counsel for Fairfield]: These trusts are subject to an accounting involving the new trustee. There will be costs and expenses associated with them. This is a court order that the trustee turn over everything. Remember, there's no discretion to the trustee. There's no ...