Original Publication: San Antonio Express News, August 5, 2011
Dear Mr. Premack: My brother recently died and I am sole beneficiary. He has no credit cards, has no mortgage, his truck is paid for. In his Will he said that bond is waived. His taxes are paid until they come due this fall. Do I need a lawyer to start the probate process or can I just go the courthouse and file? – DAC
Dear Mr. Premack: Does a simple will that lists the wife as the executrix and everything is left to her require an attorney or can she just go to the courthouse and do it herself? – MAJ
Let me rephrase your questions via an analogy: “I have a loose molar that hurts a lot. Do I need a dentist to tell me what the best solution would be, or can I just remove the molar myself?” You would never really ask that question. Rather, you would recognize that some things require the assistance of a professional who has training and experience.
Part of the dentist’s job is to diagnose exactly what is wrong and to recommend a treatment that will benefit you the most. With probate, the situation also calls for diagnosis and a recommendation. A probate lawyer can examine the whole situation, and offer a variety of legal options.
For instance: DAC’s brother has no debts and is the sole beneficiary under the Will. Does DAC know how to offer his brother’s Will for probate as a muniment of title? DAC noticed that the Will waived bond (for the executor) but does he understand the difference between a dependent versus an independent administration? Does DAC know how to avoid court supervision even if the Will does not authorize that simpler process?
Unlike medical choices, a probate mistake does not mean you will suffer a physical injury. Rather, it means that 1) you may spend days at the courthouse that could have been avoided, and 2) you may pay expenses that could have been avoided. Further, a probate mistake means that you may have trouble selling the house left to you by your brother because the title was not properly conveyed. It means that the brokerage may refuse to allow access to the decedent’s account because their liability has not been properly set aside.
So, do you need a lawyer for probate? Yes. But is a lawyer required by law in order to go to court? No. [NOTE: that law has changed as of 2019. You DO need a lawyer to become Executor. See this updated column (click).]
Technically, you can always elect to represent yourself pro se. You have the legal right to handle your own legal affairs without the aid of an attorney. If you do so, however, you should not expect the staff at the courthouse to do the work for you. They are not your unpaid legal team. In fact, the fine people who work as clerks for the probate courts will be the first to tell you that they cannot give legal advice and cannot provide you with legal documents. Why? Because they will not practice law without a license.
Further, you must be aware that while you can represent yourself, you can never do any legal work for another person (unless you are licensed as an attorney by the Supreme Court). For instance: MAJ asks if “the wife” needs a lawyer. Perhaps MAJ is asking this question on behalf of his mother (the wife of his father who has died). MAJ cannot write the court pleadings for his mother. He cannot go to court for his mother. He cannot give her legal advice, even if he thinks he knows what options exist.
His mother can choose to represent herself, but if she decides she needs help she must legally seek it from a licensed attorney. And she should realize that just like doctors, lawyers have specializations. You go to a orthopedist for a foot injury, to an ophthalmologist for cataracts. Likewise, you go to a probate lawyer to handle a decedent’s estate, not to a bankruptcy or personal injury lawyer.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.