This column first appeared in the San Antonio Express News and other Hearst Newspapers on November 25, 2019.
Dear Mr. Premack: A few months ago, my cousin died, and his Will named me as the Executor. I did some reading online and went to the library to investigate probate, and want to go to court without having to pay a lawyer. I contacted the court and they said that I am not allowed to do that and must hire a lawyer. I thought it was my right to represent myself in court if I want to, so what is the reason I have to get a lawyer to become Executor? – HW
Your question is answered by examining the difference between being your own legal counsel (acting “pro se”) versus trying to be legal counsel for someone else. It is pretty easy to see the difference in some situations. Let’s say that your daughter gets a traffic ticket, and you tell her that you’ll go to court for her to get the ticket dismissed. You would be attempting to represent your daughter in a legal matter, which is illegal practice of law without a license. She can go to court for herself, but you cannot unless you are a duly licensed attorney.
Another example: you decide that it is time to make your own Will, do the research, and hand write a holographic Will for yourself. It is legal to do so, because you are representing yourself. But you cannot similarly write a Will for your wife, or daughter, or mother because they are not you. Trying to do so is the illegal unauthorized practice of law (and, I should mention, should not be done because it is likely you could not cover all the legal variables to prepare a thorough and legally correct Will for yourself or for them; use a skilled lawyer!).
When it comes to going to probate court to become Executor, it may feel like you would be representing yourself and that you should be able to act without hiring a lawyer. But you are not acting for yourself. You are acting for the estate of the person who died. The estate is a separate entity, it is not you. Thus, even if you are named in the Will as Executor you must have a lawyer; you cannot become Executor pro se because it would be illegal unauthorized practice of law.
A recent case out of Austin reinforces that conclusion. Mr. Maupin’s wife died, and she had named him as both sole heir and as Executor. He filed for probate pro se. The probate court in Austin denied his request to become Executor, and admitted the Will to probate without appointment of an Executor because he was acting pro se. He appealed that denial, and the Texas Court of Appeals upheld the probate judge’s decision. The court rules in Travis county require Executors to be represented by lawyers, because there is a difference between “the estate” and “the Executor”. Since there are two different parties involved, it is illegal unauthorized practice of law to allow the husband to represent the estate; he must be represented by a lawyer.
The Bexar County probate courts give similar instructions. The court website states, “Only a licensed attorney may represent a third person or entity in a judicial proceeding in the State of Texas. In most probate or guardianship cases, an individual applicant is not truly representing only themselves, rather they are attempting to represent another person or persons such as beneficiaries, heirs, the estate itself, or, in cases of guardianship, the ward. … Unless the applicant is a licensed attorney, filing an application to probate a will without an attorney constitutes the unauthorized practice of law and will not be allowed by the court.” The court emphasizes that a person need not be a lawyer in order to serve as Executor or Guardian, but must be represented by a lawyer in court.
So, you must hire a lawyer to handle the appointment of an Executor under your cousin’s Will. There is no other solution for you, but readers should be aware that there are legal planning tools designed to avoid probate and avoid appointment of an Executor altogether. A qualified Elder Law or Estate Planning attorney can advise you on the best way to use trusts, survivorship rights, and other legal tools so your survivors have a faster, less expensive financial transition after your death.
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.