Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, February 21, 2006

Prof. Hatfield Explains Why Attorney Cannot Be Required to Probate Will

Following up on an earlier post, Michael Hatfield (Associate Professor of Law, Texas Tech University), explains that a court may not mandate that a lawyer be employed by a person attempting to probate a will as follows:

The judge can hold a pro se litigant to the same standards of practice (100+ cases to that effect) but cannot require her to hire a lawyer.  I don’t blame the probate court judges:  I wouldn’t want to hand-hold pro se litigants either.   But the judge’s remedy is to rule against them when they make mistakes, not deny them access to the judicial system because they find them annoying.  This is not mythical Judge Roy Bean libertarian Texas justice; quite its opposite.

Texas Supreme Court:  In 1983, the Supreme Court of Texas voided an order of Dallas County Probate Court No. 3. The probate court had ordered an executor held in contempt for not hiring an attorney.  The Supreme Court said “ordering a party to be represented by an attorney abridges that person's right to be heard by himself.”  Shaffer, 649 S.W.2d 300.  This is hardly an obscure case; its been cited 58 times since then.

Statute:  Texas Rules of Civil Procedure Rule 7:  “Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.” 

U.S. Constitution and Texas Constitution:  The U.S. Supreme Court says pro se representation is a federal Constitutional right (see, e.g., Faretta 422 U.S. 806).  Article I, Section 13 of the Texas Constitution has generally been understood to do the same.

Gross Negligence and Texas Probate Code Section 36.   Remember that that in Texas, “should damage or loss result to estates” through the “gross negligence of the judge,” then he or she may be liable to those damaged by the neglect.  If I were a probate court judge, I’d worry that this position is so unreasonable in light of the above, that some plaintiff’s lawyer would scoop up a class of estates in which the executors would have proceeded pro se but had to hire a lawyer instead --- and recover the lawyers’ fees as a class action.  It might be hard to find the specific facts that would fit clearly under TPC Section 36, but the risk of that would worry me if I were a probate court judge.   

Professional Responsibility Concerns.  As to the implications for attorney’s professional responsibility, remember that the unauthorized practice of law requires more than the 1 person (the pretend “attorney” and the “client”).  Alleging that an executor could be engaged in the unauthorized practice of law by appearing pro se alleges that there is more than “1 person” involved.  I infer that the executor is in the “attorney” role and the beneficiaries of the estate are in the “client” role and that is how “unauthorized practice” is argued to arise here. 

However, if that is the correct legal analysis (and its clearly not, see Shaffer above), any lawyer representing the executor would then, by definition, also be representing the beneficiaries of the estate.  The distinction between representing a fiduciary and representing the beneficiaries would be destroyed conceptually.  But, we don’t need to go there because the Texas Supreme Court has already told us probate court judges can’t do this.

If a fiduciary can’t appear pro se because the fiduciary, by definition, represents the beneficiaries as well, then we as lawyers ought to have even more ulcers.  Anyone who thinks its theoretical to fret about attacks on the idea of the fiduciary as a distinct legal person doesn’t worry enough about being sued by non-clients.


Estate Administration | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Prof. Hatfield Explains Why Attorney Cannot Be Required to Probate Will:

» probate and pro se: whose court is it? from f/k/a (formerly ethicalEsq)
The public is entitled to user-friendly information that allows access to probate justice without a lawyer. [Read More]

Tracked on Mar 13, 2006 7:13:50 PM


Florida has a Probate rule that requires a personal representative, unless he or she is the sole beneficiary, to hire an attorney. See Florida Probate Rule 5.030.


If Professor Hatfield's analysis is correct, then perhaps this rule is unconstitutional. I don't know off hand whether it's ever been challenged.

Posted by: Kent Schenkel | Feb 21, 2006 1:55:30 PM

Can a Florida lawyer represent the estate's administrator without attorney-client duties to the beneficiaries?

Posted by: Michael Hatfield | Feb 22, 2006 9:55:27 AM

Reshard v. Britt, 819 F.2d 1573 (11th Cir. 1987) reversed by in banc panel split evenly, thereby affirming the district court's order as a matter of law, 839 F.2d 1499 (11th Cir. 1988) (per curiam) (in banc), discussed Florida law on this issue and neither opinion called Florida's law into question, as far as I could determine. The first opinion seems to suggest that an applicant may file a Will for probate in Florida without an attorney before the applicant has been appointed, but has to have an attorney after that if any other parties are involved.

I would have to conclude that, under Florida law, an attorney for an executor or administrator does not represent the estate's beneficiaries or creditors, but somehow the executor or administrator himself represents the estate's beneficiaries or creditors.

Posted by: Terrell Dismukes | Mar 10, 2006 6:55:38 AM

It isn't at all clear that Faretta 422 U.S. 806 applies in probate cases. It is commonplace that an entity, such as a corporation, may not represent itself pro se in court through its non-attorney officers absent specific authorization from the court.

If one adopts a theory of probate law in which the estate is an entity, and the personal representative is an officer of that entity, that it would follow that the personal representative is not entitled to represent himself or herself or itself in probate matters.

The change from a contract and agency view of probate, to an entity theory, would be consistent with similar developments in the areas of partnership law and trust law.

Posted by: ohwilleke | May 23, 2006 3:37:56 PM

Can anybody tell me how to be pro se in the Cook County guardianship proceedings? The Judge said that I needed to hire an attorney because I was not bondable.

Posted by: Barbara Kanter | Jan 7, 2008 7:59:03 PM

I am a one person corporation. Another corporation might be suing me and my corporation - in California state court.

Am I allowed to represent my corporation Pro Se or does it have to be an attorney?

Posted by: GoForceGo | May 5, 2008 7:36:50 AM

In Texas - I am going to court to contest my Dads will. I am worried that the Judge is going to appoint my stepmothers lawyer as the Executor/Administrator. Wouldn't this be a conflict of interest? I am also worried that if the judge does this that the Lawyer will drag out the probate for a couple of years and therefore use up any money that should have been distributed to the heirs. I have already heard of several situations whereby this lawyer has done this and the estates were worth nothing in the end.

Posted by: Dianna Ware | Sep 2, 2012 10:58:27 AM

Post a comment