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Pro Se Probate Litigation (Monday, April 7, 2014)

Unauthorized Practice of Law & the Pro Se Litigant

In all of the 50 states, an individual may not engage in the “practice of law” without a license. What does that mean?

 

What about someone who chooses not to hire an attorney and instead want to appear pro se? What are the rules for representing yourself in court if you choose to do so?

 

So what exactly is the “practice of law”?

The practice of law is “the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court...”

 

The practice of law also includes “the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.”

—See Definition - Tex. Gov. Code § 81.101(a)

 

To become licensed in Texas, a person must obtain a bachelor’s degree, graduate from an accredited law school, and sit for and pass the Texas Bar Exam.

 

That person is then issued a State Bar Number which is to be included with their signature on all pleadings filed by them in the Courts. Anyone practicing law on behalf of another person without this license and bar number are said to be engaged in the unauthorized practice of law.

 

But What if I Want to Represent Myself?

The term “pro se” is latin for “for oneself, on one’s own behalf.” The Sixth Amendment to the U.S. Constitution, as well as Section 10, Article 1 of the Texas Constitution, afford criminal defendants the right to representation by the counsel of their choosing. In 1975, the U.S. Supreme Court held that to include the right to represent oneself if the choice was made voluntarily and intelligently.

—See Appearance Personally or by Counsel - 28 U.S.C. § 1654

—See Rights of Accused in Criminal Prosecutions - The Texas Constitution, Art. 1 Bill of Rights, Sec. 10

—See Faretta v. California, 422 U.S. 806 (1975)

 

The right to appear pro se has also been extended to apply in cases other than criminal law and is not considered to be the unauthorized practice of law. However, there is a trend, at least in Texas, to prohibit persons from appearing pro se in certain matters.

 

Local Rules of Practice

Each county in Texas passes their own rules regarding practice in that county. In the last few years, many counties have amended their local rules to prohibit the filing of any probate matter pro se.

 

Under most areas of law, an individual can appear pro se as long as they are not representing the interests of another person. If you are only representing your own rights you are not in violation of the rules regulating the unauthorized practice of law.

 

Probate & the Pro Se Litigant

In a probate proceeding, an individual is asking to be allowed to administer the estate of someone who has passed away. Someone is then appointed by the Court as the administrator or executor of the estate and is responsible for paying any debts of the estate, collecting any debts owed to the estate, and distributing all of the estate property to the beneficiaries or heirs at law.

—See Generally Tex. Est. Code Title 2. Estates of Decedents; Durable Powers of Attorney

 

While there is currently no law prohibiting an executor from serving without an attorney, Probate Courts across Texas have increasingly become concerned that allowing executors to administer the estate of another without counsel may be considered the unauthorized practice of law. The key question is – whose rights are being prosecuted or defended in the administration of the estate?

—See Pro Se Executors - Unauthorized Practice of Law, or Not? by: Michael Hatfield

 

If the rights being tended to belong to the Executor himself, then no issue of unauthorized practice of law arises. If, however, the rights belong to the estate itself, or the beneficiaries or heirs at law, then the Executor is essentially representing the interests of another person and is therefore practicing law without a license.

—See Pro Se Executors - Unauthorized Practice of Law, or Not? by: Michael Hatfield

 

So Where Does This Leave You?

As mentioned above, many counties local rules have been amended to prohibit filing an estate administration case pro se. Others allow pro se litigants only if they are the sole beneficiary.

 

Therefore, if you have been named as an executor in a will or will be looking to file an estate administration for someone you love in the near future, check the local rules for the county where that individual resided. Then consult with a local estate planning and probate attorney who knows the local rules and can point you in the right direction.

 

But don’t worry, with or without an attorney, the Texas probate process is user friendly and nothing to fear.

 

--Authored by Kayla R. Wimberley, Esq.,

 

Matthew Harris Law, PLLC  - Estate Management Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

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