Hatfield Macro
Hatfield Macro
Hatfield Macro
MICHAEL HATFIELD*
the split.4
In practical terms, the court split also means that whether or not an
executor is required by a court to hire a lawyer depends on a matter of
geography. To exacerbate the role of chance, it is not simply a matter of
geography but a matter of docket ordering for some executors because some
of the probate judges in counties with more than one probate court have
conflicting policies. Thus, for example, an executor appearing to probate a
will in Harris County may or may not be forced to hire a lawyer depending
upon which one of the four Harris County probate court’s docket his or her
case lands when the court clerk accepts the filing. One Houstonian in a
clerk’s office is told he or she has different legal rights than the Houstonian
ahead or behind him or her in a bureaucratic queue.
This Article clarifies why under Texas law an individual named as
executor in a will has the right to offer the will for probate and otherwise
appear in a probate court without hiring a lawyer.5 This Article first
provides an overview of the independent administration provisions of the
Texas probate code before reviewing the unauthorized practice of law
prohibition and the pro se exception. After establishing that Texas
executors qualify for the pro se exception in Texas because executors
appearing in court are exercising their own management rights (rather than
the rights of ―the estate‖ or the beneficiaries), the Article explores
suggestions of court reform to be considered in light of these pro se rights.
The Article concludes with the suggestion that it is probably unwise for
most executors to proceed pro se regardless of their right to do so.
4
Steele v. McDonald, 202 S.W.3d 926 (Tex.App. – Waco 2006).
5
As it is the most common form of estate administration, the paradigm considered in the
Article will be an independent administration in which there is no will contest or other litigation.
Throughout this Article, the presumption is that there is no contest between which of more than
one alleged wills is the valid one. All references to probate and estate administration are to those
not involving legal contests or disputes of any kind. The term ―probate court‖ is intended to mean
those courts with original probate jurisdiction whichever court that may be in a particular county.
See infra p. 8.
6
The term ―probate‖ refers to both the court procedure by which a will is proved to be valid
or invalid (the technical meaning) and to the legal process wherein the estate of a testator is
administered (the popular meaning). See BLACK’S LAW DICTIONARY 1202 (6th ed. 1990).
Generally, in this Article, the latter meaning will be intended except when reference is specifically
HATFIELD.MACRO 8/4/2010 10:05 AM
Schwartzel, Is the Prudent Investor Rule Good for Texas? 54 BAYLOR L. REV 71 n.472 (2002).
13
TEX. PROB. CODE ANN. §§81(a), 128(a) (Vernon 2003); see, generally, 17 WOODWARD,
supra note 7, §282.
14
This is the earliest time at which a hearing can be scheduled. §§ 128(c), 33(ff), (g).
15
§ 88.
16
§ 89.
17
This is based upon my personal experience of the well established routines of the Bexar
County Probate Courts as well as my interviews with other attorneys who are Board Certified in
Estate Planning and Probate.
18
§ 94; more generally, see WILLIAM J. BOWEN AND DOUGLAS H. PARKER PAGE ON WILLS
§ 26.8 (2004).
19
§§ 84, 88.
20
§ 75.
21
There is no requirement that a will ever be probated. See, e.g., Stringfellow v. Early, 15
HATFIELD.MACRO 8/4/2010 10:05 AM
named as the executor in the will or have a beneficial interest in it (that is,
be a beneficiary or a creditor of the estate).22
Tex. Civ. App. 597, 40 S.W. 871 (Tex. Civ. App. 1897, writ dism’d).
22
§ 3(rr), § 76.
23
Young Lawyers Association Needs of Senior Citizens Committee, Living Trust Scams, 62
Tex. B.J. 745 (1999); Sara Patel Pacheco, et al. The Texas Probate Process from Start to Finish,
p. 12 in 5TH ANNUAL BUILDING BLOCKS OF WILLS, ESTATES AND PROBATE 12 (Texas Bar CLE
2004). Estates may be administered independently of court involvement beyond the probate
hearing in two situations. The most common situation is that the will requires independent
administration. § 145(b). Otherwise, in the case of wills that do not require it or in the case of
intestate estates, the sole condition for independent administration is consent of the beneficiaries
or, as in the case of an intestate estate, the heirs. § 145(c) – (e).
24
17 WOODWARD, supra note 7, § 491. However, independent administration is not the only
simple means of estate administration in Texas, even if it is the most common. The Texas probate
code provides several alternatives for simple estate administration. Wills can be admitted as
muniments of title rather than being offered for probate with title being passed to beneficiaries
without the need for any estate administration. § 89A. Surviving spouses can administer
community property without any court proceedings at all. §§ 156, 160, 177. And the use of
affidavits in connection with certain estates and contractual settlement agreements for any estate
can be substituted for court involvement in estate administration. §§52, 137; see, e.g.,
Stringfellow, 40 S.W. 871, Estate of Morris, 677 S.W.2d 748 (Tex. Civ. App.–Amarillo 1979, writ
ref’d n.r.e.). Thus, in Texas, the general expectation is that the probate system is one of flexibility,
simplicity, and efficiency.
25
§§36, 145 (h), (q); 17 WOODWARD, supra note 7, § 75; Id. § 497; 1 DESHAZO, supra note
7, § 1:24.
26
For example, dependent administration might be favored when the estate is insolvent or
where disputes between the executor and beneficiaries are expected. For discussion see,e.g.,
Pacheco, supra note 23, at 18.
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the hearing to probate the will.27 Thereafter, the independent executor (―the
executor‖) must submit three additional documents usually consisting of no
more than five pages total: a single-paragraph oath,28a short affidavit
regarding notice to creditors,29 and an inventory of the estate’s assets.30
These documents are submitted to the court clerk. No additional contact
between the executor and the court is required. For example, there is no
requirement that the judge oversee the executor or review the fees or that
the executor close the administration.
27
§145(h); 17 WOODWARD, supra note 7, § 75; Id. §497; 1 DESHAZO, supra note 7, § 1:24.
28
§ 190; 18 M.K. WOODWARD ET AL., TEXAS PRACTICE, PROBATE & DECEDENTS’ ESTATES
§642 (2006); 1 DESHAZO, supra note 25, § 7:7.
29
§ 294; 17 WOODWARD, supra note 7, §500; 1 DESHAZO, supra note 25, § 1:30.
30
§§45(h), 250, 251. Of the three court filings required, the inventory is the most legally
complex. It requires not only valuation but a characterization of marital property as either
separate or community. This characterization can be complex whenever a decedent was married
and (a) either or both spouses at any time lived outside of Texas while married and acquired
significant property during such time; (b) either or both spouses inherited or were given
significant property; (c) either or both spouses owned significant property prior to marriage; or (d)
there was a pre-marital or post-marital property agreement between the spouses. 18
WOODWARD,supra note 28, §791; Id. § 800; 1 DESHAZO, supra note 7, § 1:29; 2 DESHAZO,
supra note 7, § 9:30.
31
§ 242; 18 WOODWARD, supra note 28, §729; 2 DESHAZO, supra note 7, § 10:21.
32
While total lawyers fees for an estate administration may vary from about $1,200 to about
$10,000 in Texas (depending upon the nature of the estate and the issues it raises), even in the
state’s largest city total legal fees and court costs for the probate hearing (independently of other
estate administration legal fees) should not be expected to exceed $800. See David P. Hassler et
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E. Probate Courts
A will may be offered for probate in the county in which the decedent
resided, if any, otherwise in the county in which the decedent’s property is
located.33 In counties without a statutory probate court, wills are offered for
probate in the constitutional county court (or, in certain instances, the
statutory county court).34 However, in a county with a statutory probate
court, the statutory probate court is the only court with probate
jurisdiction.35
With original and exclusive jurisdiction over probate matters, the
statutory probate courts of Texas are located in ten of the states most
populated counties: Bexar (two courts), Collin, Dallas (three courts),
Denton, El Paso, Galveston, Harris (four courts), Hidalgo, Tarrant (two
courts), and Travis.36 The exclusive nature of the jurisdiction means that in
probate-related cases, parties do not have recourse to a district court.37
About half of Texans live in the high population counties with specialized
statutory probate courts.38 As mentioned above, eight of the specialized
courts currently permit executors to appear without a lawyer, while nine
require it.39
al., Getting Down to Bidness: A Survey on Economics, Practice Management and Life Quality
Issues for Texas Estate Planning and Probate Attorneys At The Turn of the Century p. 16 in
ESTATE PLANNING AND PROBATE 2000 (Texas Bar CLE 2000) and Jones, supra note 9, at 29.
33
For a more complete overview of venue, see, e.g., § 6; 17 WOODWARD, supra note 7, §§
44-45; 2 DESHAZO, supra note 7, § 14:36.
34
§4; §5; see TEX. GOV’T CODE ANN. §25.0003(d) (Vernon 2003); 17 WOODWARD, supra
note 7, § 1.
35
TEX. GOV’T CODE ANN. §25.0003(e) (emphasis added).
36
The Statutory Probate Courts contact and other information is available at
http://www.courts.state.tx.us/trial/probate.asp (last visited June 26, 2006).
37
For a review of the history of the statutory probate courts from the 1970s onward, see
Joseph R. Marrs, Playing the Probate Card: A Plaintiff’s Guide to Transfer to Statutory Probate
Courts, 36 ST. MARY’S L.J. 99 (2004).
38
The population of Texas is estimated to be about 23,000,000 with about 11,700,000 Texans
living in the following counties each of which having one or more specialized statutory probate
court: Bexar, Collin, Dallas, Denton, El Paso, Galveston, Harris, Tarrant, and Travis. The
population estimates may be found on the U.S. Census Bureau web site available at
http://quickfacts.census.gov/qfd/states/48000.html (last visited April 28, 2006) while the current
list of statutory probate courts (with their contact information) may be found on the Texas
Judiciary Online web site available at http://www.courts.state.tx.us/trial/probate.asp (last visited
June 26, 2006).
39
Supra note 3.
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On October 18, 2006 the Waco Appeals Court spread the confusion
beyond the most populous counties by denying an executor the right to
proceed pro se in a hearing unrelated to the probate of a will.40 A vigorous
dissent by the Chief Justice argued that the majority had adequately
considered neither the law nor the consequences.41 The Chief Justice
lamented the ending of the independent administration system in Texas
heralded by such pro se denials,42 which is a concern echoed elsewhere —
and now in this Article.
40
Steele v. McDonald, 202 S.W.3d 926 (Tex.App. – Waco 2006).
41
Steele, 930-931.
42
Id.
43
RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS §4, especially Comment C (2000)
[hereinafter RESTATEMENT]
44
Perhaps also surprising to Americans would be knowing that the prohibition against ―the
unauthorized practice of law‖ is unknown in most of the world, including Europe. RONALD D.
ROTUNDA & JOHN S. DZIENKOWSKI, LEGAL ETHICS, LAWYER’S. DESKBOOK PROFESSIONAL
RESPONSIBILITY §5.5-3 (2005-6 ed.).
45
Id.
46
From the American Revolution through the Civil War, there was no substantial effort by the
bar to stop ―unauthorized‖ practice. Deborah L. Rhode, Policing The Professional Monopoly: A
Constitutional And Empirical Analysis Of Unauthorized Practice Prohibitions, 34 STAN. L. REV.
1, 7-10 (1981); Derek A. Denckla, Nonlawyers And The Unauthorized Practice of Law: An
Overview of Legal and Ethical Parameters, 67 FORDHAM L. REV 2581, 2583-2586 (1999); see
also STANDING COMMITTEE ON LAWYERS’ RESPONSIBILITY FOR CLIENT PROTECTION,
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the American Bar Association adopted its first Canons of Ethics in 1908,
the issue was not even addressed.47 The campaign against unauthorized
practice began in 1914 as an effort to curtail competition with lawyers from
banks and title companies.48 This campaign gained momentum during the
Great Depression when the American Bar Association organized its first
unauthorized practice committees, which eventually were successful at
divvying-up legally-significant work through negotiations with the banks
and title companies, as well as the insurance companies, realtors,
accountants, and other competing industries and professions.49 By the
1960s, federal anti-trust issues raised by these negotiated professional
boundaries began to weaken the bar’s campaign.50 By the end of the 20th
century, the campaign had weakened to the point that the American Bar
Association and many states disbanded their committees on unauthorized
practice; legal reformers began calling into question whether or not the rule
actually provided any public benefit (or only provided an economic benefit
to lawyers); and even members of the bar began calling for the
minimization rather than the defense of the professional walls encircling the
law.51
AMERICAN BAR ASSOCIATION 1994 SURVEY AND RELATED MATERIALS ON THE UNAUTHORIZED
PRACTICE OF LAW/NONLAWYER PRACTICE p. xii – xv (1996) (hereinafter [ABA Survey]). After
the Civil War, bar associations did begin lobbying for passage of legislation that prohibited non-
lawyers from making court appearances. Denckla, supra, at 2582-2583. Roscoe Pound’s theory of
the evolution of legal systems begins with the first step of a desire to administer justice without
lawyers which manifests itself in a hostility to a formal bar. The appropriate role of lawyers in the
American justice systems has been the subject of debate since the beginning, even though it is
hard for contemporary lawyers to imagine how that could even be possible. Pound’s orientation
to the lawyers and the administration of justice sets the tone for the ABA Survey. Id. at xi.
47
Denckla, supra note 43, at 2583.
48
Id. at 2582-2584.
49
Rhode, supra note 43; Denckla, supra note 43, at 2584-2585. Initially articulated by the
bar in terms of economic self-interest, the public justification for the prohibition was eventually
changed to protecting the public (though the public itself has not given much support to the bar’s
efforts and the empirical research indicates the public has suffered little, if any, as a result of non-
lawyers practicing law). Rhode, supra note 43, at 3; RESTATEMENT, supra note 40, Note on
Comment A, Comment b, and Comment C.
50
Denckla, supra note 43, at 2584; ABA Survey, supra note 43, at p. xv-xvi.
51
Denckla, supra note 43, at 2585. See, e.g., Michael W. Price, A New Millennium’s
Resolution: The ABA Continues Its Regrettable Ban On Multidisciplinary Practice, 37 HOUS. L.
REV. 1495 (2000); Stuart S. Prince, The Bar Strikes Back; The ABA’s Misguided Quash of the
MDP Rebellion, 50 AM. U. L. REV. 245 (2000); Bradley G. Johnson, Ready or Not, Here They
Come: Why The ABA Should Amend The Model Rules To Accommodate Multidisciplinary
Practices, 57 WASH. & LEE. L. REV. 951 (2000).
HATFIELD.MACRO 8/4/2010 10:05 AM
52
See In Re Nolo Press/Folk Law, 991 S.W.2d 768, 769-70 (Tex. 1999); Rodney Gilstrap and
Leland C. de la Garza, UPL: Unlicensed, Unwanted and Unwelcome, 68 TEX. B.J. 798 (October
2004).
53
See In Re Nolo Press, 991 S.W.2d at 769-70; Gilstrap and Garza, supra note 49. In 1939,
the State Bar of Texas created the Unauthorized Practice of Law Committee. The Texas Supreme
Court initially adopted rules that authorized the UPLC to assist local grievance committees to
investigate UPL but did not authorize the UPLC to prosecute lawsuits. The UPLC’s role was
largely advisory. The investigation and prosecution of UPL was left to the local grievance
committees. In 1952, the Texas Supreme Court adopted rules establishing the UPLC as a
permanent entity and giving the UPLC investigative and prosecutorial powers, as well as the duty
to inform the State Bar and others about UPL. From 1952 to 1979, the UPLC’s members were
appointed by the State Bar. In 1979, the UPL statute was amended to require that members of the
UPLC be appointed by the Supreme Court. See In Re Nolo Press, 991 S.W.2d at 769-70; Gilstrap
and Garza, supra note 49.
54
Jack Baker et al., Professionals Clash on What Is The Practice of Law, PRAC. TAX
STRATEGIES (May 1999).
55
ROTUNDA & DZIENKOWSKI, supra note 41, § 39-1.2.
56
For example, for Texas law see TEX. PEN. CODE ANN. §38.122 – 38.123 (Vernon 2003);
TEX. GOV’T CODE ANN., § 81.103, 81.104. (Vernon 2005); Crain v. UPLC, 11 S.W.3d 328, 333
(Tex. App.—Houston [1st Dist.] 2000, pet. denied), cert. denied, 532 U.S. 1067 (2001); Davies v.
Unauthorized Practice Committee, 431 S.W.2d 590 (Tex. Civ. App.—Tyler 1968, writ ref’d
n.r.e.); Stewart Abstract Co. v. Judicial Commission, 131 S.W.2d 686, 689 (Tex. Civ. App.—
Beaumont 1939, no writ); see Gilstrap and Garza, supra note 49.
57
ROTUNDA & DZIENKOWSKI, supra note 41, § 39-1.2; Denckla, supra note 43.
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58
See, e.g., Linda Galler, ―Practice of Law” in the New Millennium: New Roles, New Rules
But No Definitions, 72 TEMP. L. REV. 1001 (1999); REST Reporters Note C; see, e.g., Miller v.
Vance, 463 N.E.2d 250, 251 (Ind. 1984); In re Campaign for Ratepayers’ Rights, 634 A.2d 1345,
1351 (N.H. 1993); In re Unauthorized Practice of Law Rules, 422 S.E.2d 123, 124 (S.C. 1992).
59
For a critical assessment in terms of Constitutional and public policy concerns, see, e.g.,
Rhode, supra note 43.
60
Denckla, supra note 43, at 2590; RESTATEMENT, supra note 40; Compare, e.g., Pope
County Bar Ass’n v. Suggs, 624 S.W.2d 828 (Ark. 1981) (real-estate brokers may complete
standardized forms for simple real-estate transactions); Miller, 463 N.E.2d 250 (both banks and
real-estate agencies may fill in blanks on approved mortgage forms, so long as no individual
advice given or charge made for that service); In re First Escrow, Inc., 840 S.W.2d 839 (Mo.
1992) (escrow closing companies, real-estate brokers, lenders, and title insurers may use standard
forms for standardized real-estate transactions, so long as no advice given or separate fee charged
for that service); In re Opinion No. 26 of the Comm. on Unauthorized Practice, 654 A.2d 1344
(N.J. 1995) (despite fact that many aspects of residential real-estate transaction involves practice
of law, real-estate brokers and title-company officers may control and handle all aspects of such
transactions, after fully informing parties of risks of proceeding without lawyers), with, e.g.,
Arizona St. Bar Ass’n v. Arizona Land Title & Trust Co., 366 P.2d 1 (Ariz.1961) (real-estate
agents may not fill out standardized forms in land-sale transactions); Kentucky St. Bar Ass’n v.
Tussey, 476 S.W.2d 177 (Ky. 1972) (bank officer’s act of filling out mortgage forms constitutes
unauthorized practice).
61
Denckla, supra note 43, at 2591.
62
Id.
63
ABA Survey, supra note 43, at 34-43, see especially the study of California, Delaware, the
District of Columbia, Iowa, Maryland, Massachusetts, New Hampshire, New York, Oregon,
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The federal rules even permit non-lawyers to represent others in the United
States Tax Court, which travels across the country holding trials in states
with local laws that prohibit non-lawyer representation in court.64
69
Id. § 81.101.
70
Id. § 81.101(b).
71
TEX. R. GOVERN. BAR ADM’N XIII(c)(1).
72
Crain v. UPLC, 11 S.W.3d 328, 333 (Tex. App.—Houston [1st Dist.] 2000, pet. denied),
cert. denied, 532 U.S. 1067 (2001); Davies v. Unauthorized Practice Committee, 431 S.W.2d 590
(Tex. Civ. App.—Tyler 1968, writ ref’d n.r.e.): Stewart Abstract Co. v. Judicial Commission, 131
S.W.2d 686, 689 (Tex. Civ. App.—Beaumont 1939, no writ).
73
See TEX. GOV’T CODE ANN. § 28.003(d); Op. Tex. Att’y Gen. Nos. C-82 (1963), C-283
(1964) and II-538 (1975) (small claims court cases); TEX. R. CIV. P. 747a; TEX. PROP. CODE ANN,
§ 24.011 (Vernon 2000); Op. Tex. Att’y Gen. No. JM-451 (1988) (FED cases).
74
See, e.g., TEX. LAB. CODE ANN. § 401.011(37) (Vernon 2006) (Workers’ Compensation
Comm.); 28 TEX. ADMIN. CODE § 1.8 (West 2006) (Tex. Dep’t of Ins.).
75
TEX. GOV’T CODE ANN. § 81.102; TEX. R. GOVERN. BAR ADM’N XIX.
76
TEX GOV’T CODE ANN. §83.001.
77
Id.
78
Id. §81.101.
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79
RESTATEMENT, supra note 40, §4.
80
Id. Comment C
81
Id, Comments C and D.
82
ROTUNDA & DZIENKOWSKI, supra note 41, § 39-4.2; RESTATEMENT, supra note 40.
83
Tiffany Buxton, Foreign Solutions To The U.S. Pro Se Phenomenon, 34 CASE W. RES. J.
INT’L L. 103, 107 (2002).
84
Id. at 109. Congress re-enacted a revised version of this Act in 1948, granting parties the
right to ―plead and conduct their own case personally‖ in any court of the United States. Id.at 110.
85
U.S. v. Dougherty, 473 F.2d 1113, 1127, 154 U.S.App.D.C. 76, 90 (D.C.Cir. Jun 30, 1972).
86
Id. at 1128, 91.
87
The Supreme Court needed to specifically recognize a Constitutional right to proceed pro
se in criminal cases because the pro se right can conflict with the Constitutional right to competent
counsel in criminal cases. Since the Supreme Court has recognized the right as a more
fundamental Constitutional right than the right to competent counsel, it would be hard to argue the
Supreme Court would not recognize the right in a civil context in which there is no competing
Constitutional right. Nevertheless, the court has never had the opportunity and given the statutory
protection of the right, it seems an issue unlikely to ever arise for review. The seminal decision
extending the federal constitutional right of pro se representation to an accused in a criminal case
is Faretta v. California, 422 U.S. 806 (1975). In effectuating the right, the court is required to warn
a defendant adequately of the dangers and disadvantages of self-representation in order that the
waiver of the right to counsel be knowing and voluntary. Id. at 2541; e.g., United States v.
Sandles, 23 F.3d 1121 (7th Cir. 1994), and authority cited. On the power of the court to appoint
―standby counsel‖ for an accused proceeding pro se, even over objection by the accused, see
Faretta, 422 U.S. at 834 n.46; McKaskle v. Wiggins, 465 U.S. 168, 184 (1984). On the general
desirability of doing so, see, e.g., United States v. Moya-Gomez, 860 F.2d 706, 740 (7th Cir.
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federal statute and other state statute formats, simply stating that 88 ―any
party to a suit may appear and prosecute or defend his rights therein, either
in person or by an attorney of the court.‖89
The right to proceed pro se is a personal right and can only be exercised
by the person having the right. This means, for example, that a non-lawyer
owner, officer, or other agent of a business entity does not have the right to
appear in court in order to prosecute or defend the business entity’s rights.90
Texas courts have followed this general rule with respect to corporations
finding that the corporation’s non-lawyer agents are not appearing to defend
1988), cert. denied, 492 U.S. 908 (1989). There is, however, no constitutional right to the
assistance of standby counsel. E.g., United States v. Betancourt-Arretuche, 933 F.2d 89 (1st Cir.
1991), cert. denied, 502 U.S. 959 (1991); United States v. La Chance, 817 F.2d 1491, 1498 (11th
Cir. 1987), cert. denied, 484 U.S. 928 (1987). An accused also has no right to a ―hybrid‖
representation, part pro se and part standby counsel. See McKaskle, 465 U.S. at 178. On the rule
that a mid-trial election by an accused to invoke the right to proceed pro se does not relieve long-
standing counsel from responsibility to continue as standby counsel, see United States v.
Cannistraro, 799 F.Supp. 410 (D.N.J. 1992). RESTATEMENT, supra note 40. See also Comment,
Letting the Laity Litigate: The Petition Clause and Unauthorized Practice Rules, 132 U. PA. L.
REV. 1515 (1984); Julie M. Bradlow, Procedural Due Process Rights of Pro Se Civil Litigants, 55
U. CHI. L. REV. 659 (1988); Edward M. Holt, How To Treat “Fools:” Exploring The Duties
Owed To Pro Se Litigants In Civil Cases, 25 LEGAL PROF.. 167 (2001); Buxton, supra note 80, at
103.
88
The Texas Constitution specifically provides that Texas criminal defendants have the right
to appear without counsel.
89
Texas Rules of Civil Procedure 7 applies to probate proceedings. TEX. R. CIV. P. 2.
90
Restatement, supra note 40, Comment E. See generally C. Wolfram, MODERN LEGAL
ETHICS § 13.7 (1986). On the rule that a corporation or similar entity can appear in court only
through an attorney, see, e.g., Osborn v. Bank, 22 U.S. (9 Wheat.) 738, 830 (1824); Commercial
& R.R. Bank v. Slocomb, Richards & Co., 39 U.S. (14 Pet.) 60, 65 (1840); Capital Group, Inc. v.
Gaston & Snow, 768 F.Supp. 264 (E.D. Wis. 1991) (president and sole shareholder of
professional-services corporation could represent himself pro se, but could not represent
corporation in either of those capacities or by assignment of its cause of action), citing authority;
Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753 (Minn. 1992) (corporation appearing in
trial court must be represented by attorney despite fact that court proceeding originated in small-
claims court where no such rule applied); Salman v. Newell, 885 P.2d 607 (Nev. 1994) (trust
could not proceed pro se, and non-attorney trustee could not represent trust); E & A Assocs. v.
First Nat’l Bank, 899 P.2d 243 (Colo. Ct. App. 1994) (nonattorney general partner could not
represent partnership). Some courts have made narrow exceptions where the proceeding would not
be unduly impaired, in view of the nature of the litigation, or where enforcing the rule would
effectively exclude the entity from court. E.g., In re Unauthorized Practice of Law Rules, 422
S.E.2d 123 (S.C. 1992) (business may be represented in civil-magistrate proceedings by
nonattorney); Vermont Agency of Natural Res. v. Upper Valley Reg’l Landfill Corp., 621 A.2d
225 (Vt. 1992), and authority cited. RESTATEMENT, supra note 40, Comment D.
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their personal rights but rather the corporation’s and, thus, do not qualify
under the pro se exception.91
The corporate variety of the pro se right allows the corporation’s in
house, employee-lawyer to represent it in court rather than requiring the
corporation to hire outside legal counsel. Since the in house, employee-
lawyer is an agent of the corporation, his or her appearance in court is
considered to be the corporation’s appearance. Even though corporations
cannot practice law, they are allowed this type of pro se appearance so long
as the subject of the legal proceedings is the corporation’s own rights and
not the rights of others. To allow the latter would be to allow the
corporation to practice law for another’s benefit.
91
Kunstoplast of Am., Inc. v. Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. 1996)
(generally, a corporation may be represented only by a licensed attorney). But see, Custom-Crete,
Inc. v. K-Bar Services, Inc., 82 S.W.3d 655 (App. 4 Dist. 2002) (letter of non-attorney corporate
representative, which denied breach of contract claims against corporation, was sufficient to avoid
no-answer default judgment).
92
See, e.g., Travis County Court Policy Regarding Pro Se Applicants available at
http://www.co.travis.tx.us/probate/pdfs/pro_se.pdf (last visited September 19, 2006).
93
TEX. PROB. CODE ANN. § 242 (Vernon 2003); 18 WOODWARD, supra note 28 § 729; 2
DESHAZO, supra note 7, § 10:21.
94
Id.; See, e.g., Callaghan v. Grenet, 66 Tex. 236 (1886); Williams v. Robinson, 56 Tex. 347
(1882); Dallas Joint Stock Land Bank v. Maxey, 112 S.W.2d 305 (Civ.App.1937, n. w. h.); see
W.S. Simkins, THE ADMINISTRATION OF ESTATES IN TEXAS 3D. § 270 (1934).
HATFIELD.MACRO 8/4/2010 10:05 AM
95
TEX. R. CIV. P. 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.‖
96
See supra pp. 15-16.
97
The Alabama Supreme Court adopted the reasoning that an estate is a legal entity in Ex
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Maine98 and South Carolina,99 the courts have extended the reasoning of
this business entity rule to estates without addressing the fundamental
question.
When solving the pro se rights equation for an executor, the
fundamental question is whether or not a non-attorney executor relates to
the estate in the way that a corporation’s non-attorney officer or other
agents relate to the corporationWhile we may casually speak of an executor
representing ―the estate,‖ the question with respect to pro se representation
is how legally similar are the two relationships.
An estate is very much unlike a corporation because it is not a legal
entity. It can neither sue nor be sued. 100 The ―estate‖ is no more than the
property owned by the decedent at death and is legally defined as such.101
Because estates are not entities with legal rights, the Texas cases in which
corporate agents are prohibited from appearing on behalf of the corporation
are not analogous.
Proponents of the entity approach could point to the exceptions to the
general rule. It is true that there are limited exceptions to the general rule,
such as giving estates entity-like rights to be a partner in a Texas
partnership.102 However, the Texas Supreme Court has consistently
dismissed any claims that an estate should be treated as an entity as a
general rule in Texas and has specifically denied that an estate is the party
with rights in a law suit.103
parte Ghafary, 738 So.2d 778, 780 (Ala. 1998) and affirmed it in Godwin v. McKnight, 784 So.2d
1014, 1014 (Ala. 2000) in which it asserted without further analysis that the executor’s filings
were ―on behalf of‖ the estate.
98
The Supreme Judicial Court of Maine adopted the reasoning that an estate is a legal entity
in State v. Simanonok, 539 A.2d 211, 212 (Me. 1988).
99
The Supreme Court of South Carolina adopted the reasoning that an estate is a legal entity
in Brown v. Coe, 616 S.E.2d 705, 707-708 (S.C. 2005).
100
Dueitt v. Dueitt, 802 S.W.2d 859 (Tex.App.—Houston [1st Dist.] 1991, no writ); Henson
v. Estate of Crow, 734 S.W.2d 648 (Tex. 1987); Price v. Estate of Anderson, 522 S.W.2d 690
(Tex. 1975); see also JUDGE ADELE HEDGES & LYNNE LIBERATO, TEXAS PRACTICE GUIDE:
CIVIL APPEALS §5:38 (2006); 17 WOODWARD, supra note 7, § 178; 29 TEX. JUR. 3D DECEDENTS’
ESTATES §544 (2006).
101
§ 3(l).
102
For discussion of estates as partners, see, e.g., 19 ROBERT W. HAMILTON ET. AL., TEXAS
PRACTICE, BUSINESS ORGANIZATIONS §6.5 (2005).
103
Dueitt, 802 S.W.2d 859; Henson, 734 S.W.2d 648; Price, 522 S.W.2d 690; ; see also
HEDGES & LIBERATO, supra note 94; 17 WOODWARD, supra note 7, § 178; 29 TEX. JUR. 3D
DECEDENTS’ ESTATES §544. For a discussion of the general rule that only the executor has the
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1. Minnesota
The seminal Minnesota case was a 1930 professional discipline case, In
Re Otterness.107 An attorney who was a salaried employee of a bank turned
right to be the party to the suit and some of the exceptions to the general rule, see 17 WOODWARD,
supra note 7, § 171; AUTHOR, TEXAS PROBATE, ESTATE AND TRUST ADMINISTRATION §§ 46.01-
0.2 (year); HEDGES & LIBERATO ,supra note 94; 17 WOODWARD, supra note 7, § 178; 29 TEX.
JUR. 3D DECEDENTS’ ESTATES §544.
104
See supra p. 9.
105
In Re Otterness, 181 Minn. 254, 223 N.W. 318 (Minn. 1930).
106
A too brief review of 19 A.L.R.3d 1104 regarding the ―necessity that executor or
administrator be represented by counsel in presenting matters in probate court‖ could leave the
impression that the Minnesota rule is more settled law than it is. This secondary source cites all of
the cases described but, for example, cites the Ohio case (described below) in support of the
proposition even though the Ohio case rejected the Minnesota rule. As to the other cases the
American Law Reporter cites, none are on point even though close: Wright, State ex rel. v.
Barlow, 132 Neb. 166, 271 N.W. 282 (1937) (this was a criminal case against a man who held
himself out as a lawyer and given advices to executors and administrators; the pro se exception
was not relevant); Detroit Bar Ass’n v. Union Guardian Trust Co., 282 Mich. 707, 281 N.W. 432
(1938) (this was a case of a corporation using non-lawyers to appear in court on its behalf, which
is not permitted since the non-lawyers are representing the corporation, not themselves; the issue
was a corporation’s general pro se rights rather than an executor’s specific pro se rights); Grand
Rapids Bar Ass’n v. Denkema, 290 Mich. 56, 287 N.W. 377 (1939) (this is the case of a real estate
broker providing legal services; although dicta recites the Minnesota rule, the broker had provided
legal advice to executors and administrators but had not himself appeared as such; the pro se
exception was not relevant). This Denkema case cites several older cases along with the Otterness
case, but the older cases are all examples of someone who was not a lawyer holding himself out as
a lawyer—and not cases in which an executor’s right to appear pro se was relevant. Similarly,
see, for example, Ferris v. Snively, 19 P.2d. 942 (Wash. 1933) and In re Brainard, 39 P.2d. 769
(Ia. 1934).
107
In Re Otterness, 223 N.W. 318.
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over to the bank his legal fees charged for the probate court work he did.108
The Minnesota Supreme Court censured the attorney. 109 The bank was not
permitted to practice law in Minnesota, and the attorney was facilitating its
practice because the probate court work profited the bank.110 The pro se
exception was a potential defense since had it qualified, the bank would not
have been engaged in the unauthorized practice of law, and the attorney
would not have been guilty of assisting it.111 That is, while the bank could
not appear in probate court on behalf of the beneficiaries of the estates, if its
court appearances were for its own benefit as executor of the estates, it
would not be engaged in the unauthorized practice of law but rather covered
by the pro se exception. Dismissing the potential pro se defense, the court
cited, explained, and distinguished the pro se exception in a single short
paragraph: as the bank had no beneficial interest in the estate, it had no right
to appear pro se.112 The only exception according to the Minnesota court
would be if the bank were to defend personal rights as an executor, such as
if it were to defend against a fiduciary misconduct charge.113
2. Arkansas
In the 1954 case Arkansas Bar Ass’n v. Union Nat’l Bank of Little Rock,
the Arkansas Supreme Court followed the Minnesota rule when it too
considered a bank’s use of salaried attorneys to engage in the practice of
law in the probate courts. Again addressing the pro se exception in a
situation in which it could be used defensively by a bank, the court opined
that the bank executor was not acting on its own behalf but on behalf of the
beneficiaries. Thus, the court concluded the bank-executor did not qualify
for the pro se exception.114 (Almost fifty years later, the Arkansas Supreme
Court re-affirmed this as the rule in Arkansas.)115
108
Id. at 256.
109
Id. at 258.
110
Id. at 257.
111
See supra pp. 15-16.
112
In Re Otterness, 223 N.W. 318 at 258.
113
Id.
114
Arkansas Bar Ass’n v. Union Nat’l Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408
(1954).
115
Davenport v. Lee, 72 D.W.3d. 85 (Ark. 2002).
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3. Kentucky
As in Minnesota and Arkansas, it was banks allegedly engaged in the
practice of law in the probate courts that brought the issue of pro se
executors to the Supreme Court of Kentucky in the 1965 case Frazee v.
Citizens Fidelty Bank & Trust Company.116 Specifically, the court was
considering contempt proceedings against five banks for the unauthorized
practice of law through their salaried employee-attorneys.117 The banks
claimed protection under a Kentucky statute explicitly confirming pro se
rights to fiduciaries.118 The court invoked its superiority over the legislature
on these issues and disregarded the statute.119 Citing its own cases against
unauthorized practice but offering no further analysis, the court simply
stated that ―fiduciaries are in no different position‖ than other unlicensed
persons without a ―beneficial interest in the corpus of the estate.‖120 Thus,
the court denied the banks the right to appear pro se.
4. Wisconsin
The first state supreme court to consider the pro se executor issue
outside the context of preventing banks from practicing law for profit was
the Wisconsin court in the 1965 case Baker v. County Court of Rock
County.121 An individual executor fired his attorney and then made pro se
filings.122 The courts rejected the filings and ordered the executor to hire an
attorney.123 As was required in the Wisconsin probate process, the executor
had requested the probate court to review and adjudicate the rights of the
beneficiaries in certain distributions.124 The probate court thought that it
was rare for beneficiaries to hire their own attorneys to review these
procedures, and, thus, the court reasoned it was incumbent upon the
executor to hire an attorney; otherwise, the legal rights of the beneficiaries
would go un-represented by an attorney, which would place an undue
116
Frazee v. Citizens Fidelty Bank & Trust Co., 393 S.W.2d 778 (Ky. 1965).
117
Id. at 781.
118
Id. at 781-782.
119
Id. at 783.
120
Id. at 782.
121
Baker v. County Court of Rock County 29 Wis. 2d 1, 138 N.W.2d 162 (1965).
122
Id. at 164.
123
Id.
124
Id. at 165.
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5. Florida
The Florida Supreme Court followed the Minnesota rule in its 1974 case
Falkner v. Blanton.129 Like the Wisconsin court, the Florida Supreme Court
considered the pro se appearance rights of an individual executor outside of
the context of prohibiting banks from practicing law in the probate court.130
However, in its single paragraph opinion, the court distinguished itself from
the Wisconsin court by holding that an individual executor would have pro
se rights so long as the executor was the sole beneficiary of the estate.131
Unlike the Wisconsin court, it did not distinguish between simple and
complex proceedings.
125
Id. at 167.
126
Id.
127
Id. at 171-172.
128
Id.
129
State ex rel. Falkner v. Blanton, 297 So.2d 825 (Fla. 1974).
130
Id. at 825.
131
Id.
132
The Supreme Court of Indiana also rejected the Minnesota approach to the pro se
exception but with respect to trustees (i.e., the case did not address executors’ rights). Groninger
v. Fletcher Trust Co., 220 Ind. 202, 41 N.E.2d 140 (1942).
133
Judd v. City Trust Sav. Bank, 133 Ohio. St. 81, 12 N.E.2d 288 (1937). In Ohio, once the
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planning for clients, even if it were named as the fiduciary in the estate
planning documents.134 However, it held that banks were covered by the
pro se exception (and thus not engaged in the unauthorized practice of law)
if their salaried attorney-employees appeared in probate court on behalf of
the banks as executors.135 The court noted that executors are bound to
fulfill various duties and that they are personally liable for mismanagement,
misconduct, or neglect in connection with these duties.136 The attorneys
employed by the banks were thus employed so that the bank could
discharge its duties without being subject to suit.137 The court noted that
any beneficiary dissatisfied with the way in which the executor discharges
its duties can sue the executor.138 Nevertheless, as a result of their pro se
rights, the bank-executors could represent themselves in court (through
their salaried-employee attorneys) without being engaged in the
unauthorized practice of law.139 Thus, the Ohio Supreme Court rejected the
notion that the executors were only representatives of the beneficiaries’
interests and focused instead on the executor’s personal liability in
discharging its duties.
bank is appointed ―it can handle all probate and other legal work necessary to execute the trust.‖ 2
ANGELA G. CARLIN, BALDWIN’S OHIO PRACTICE MERRICK-RIPPNER PROBATE LAW §53:6
(2006).
134
Id. at 85, 291.
135
Id. at 94, 294.
136
Id. at 90-92, 292-294.
137
Id.
138
Id.
139
Id.
140
See supra p. 9.
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Minnesota case, the Kentucky case, the Ohio case, and the Arkansas case
all have to be seen in this greater historical context. The Kentucky court
was not only siding with the bar over the banks in the contempt proceeding
against the banks, but also was defending its own turf against the
legislature; the court was asserting its rights over the legislature’s when it
rejected both the substance and the form of the legislature’s permission for
fiduciaries to appear pro se (permission one surmises that may have been
granted after the banks’ lobbying). 141
As the pro se exception was a potential defense for the banks, it was
removed with cursory reasoning by those courts following the Minnesota
rule. As discussed above, corporations cannot appear pro se through their
non-lawyer employees.142 Thus, the right for a corporation to appear pro se
is simply the right not to spend their funds on outside legal counsel. The
banks that were providing probate services did so with their in house legal
counsel in order to make a profit. Had the courts concluded that it was the
bank’s rights at stake in the probate proceedings, the banks could have
continued to make a profit with their in house legal counsel. But by
concluding the banks were not acting for their own benefit but for the
beneficiaries, the banks were not permitted to proceed with their in house
legal staff in competing with lawyers for probate services.
The Minnesota rule courts were explicitly interested in stopping bank
competition for probate services. There is nothing said about protecting the
public from ill-prepared non-lawyers since, after all, those who were
representing the banks were, indeed, lawyers. Historically, this type of
economic defensiveness by the bar eventually led to anti-trust concerns,
which eventually led to the decline in the zealousness of unauthorized
practice prosecutions.143 In the early days, it was not shameful for the bar
to assert that economic interests were behind its unauthorized practice
prosecutions.144 Eventually, of course, this did become shameful, and the
141
Frazee v. Citizens Fidelty Bank & Trust Co., 393 S.W.2d 778, 783 (Ky. 1965).
142
See supra pp. 15-16.
143
See supra pp. 9-12.
144
Rhode, supra note 43; Denckla, supra note 43, at 2584-2585. Initially articulated by the
bar in terms of economic self-interest, the public justification for the prohibition was eventually
changed to protecting the public (though the public itself has not given much support to the bar’s
efforts and the empirical research indicates the public has suffered little, if any, as a result of non-
lawyers practicing law). Rhode, supra note 43, at 3; RESTATEMENT, supra note 40, Note on
Comment A, Comment B, and Comment C.
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145
Id.
146
The exception was the Wisconsin court which focused on the executor’s relationship to the
court during estate administration. Baker v. County Court of Rock County 29 Wis. 2d 1, 8 138
N.W.2d 162, 166 (1965).
147
In Re Otterness, 181 Minn. 254, 258 223 N.W. 318, 320 (1930); Arkansas Bar Ass’n v.
Union Nat’l Bank of Little Rock, 224 Ark. 48, 52, 273 S.W.2d 408, 411 (1954); Frazee v. Citizens
Fidelty Bank & Trust Company, 393 S.W.2d 778, 782 (Ky. 1965); Falker v. Blanton, 297 So.2d
825, 825 (Fla. 1974).
148
TEX. PROB. CODE ANN. §76 (Vernon 2003); 17 WOODWARD, supra note 7, § 243.
149
Id.
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150
Id.
151
The custodian of the will upon the testator’s death should deliver it to the proper court
clerk, but there is no duty to probate a will in Texas. §75. 74 TEX. JUR. 3D WILLS §361.
152
§ 78 provides the only grounds on which an executor can be disqualified from serving. 17
WOODWARD, supra note 7, § 252; 1 DESHAZO, supra note 25, § 5:14.
153
§37, §230, §232. Blinn v. McDonald, 92 Tex. 604, 612, 46 S.W. 787 (1898); Morris v.
Ratliff, 291 S.W.2d 418 (Civ. App. 1956, writ ref’d n. r. e.); Freeman v. Banks, 91 S.W.2d 1078
(Civ. App. 1936, writ ref’d.) See 18 WOODWARD, supra note 28, § 693; 18 TEXAS PRACTICE,
PROB. & DECEDENTS’ ESTATES §697; 17 WOODWARD, supra note 7, § 171; TEXAS PROBATE,
ESTATE AND TRUST ADMINISTRATION §47.01[2].
154
Id.
155
For a discussion of the general rule and the rare exceptions, see §233A; Gannaway v.
Barrera, 74 S.W.2d 717 (Civ. App. 1934), aff’d on other grounds, 130 Tex. 142, 105 S.W.2d 876
(1937). Gaston v. Bruton, 358 S.W.2d 207 (Civ. App. 1962, writ ref’d n. r. e.). See 17
WOODWARD, supra note 7, § 171; TEXAS PROBATE, ESTATE AND TRUST ADMINISTRATION
§§46.01-0.2; HEDGES & LIBERATO , supra note 94; 17 WOODWARD, supra note 7, § 178; 29 TEX.
JUR. 3D DECEDENTS’ ESTATES §544.
156
Id.
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derive the right from them. The beneficiaries have no right to manage the
executor, and even by pooling all of their rights, the beneficiaries cannot
remove the executor for the exercise of his or her discretion one way rather
than another so long as he or she discharges the legal duties and abides by
fiduciary principles.157 For example, the executor can decide whether or not
to pursue a malpractice claim against the testator’s estate planning
attorney.158 Not any one of the beneficiaries and not all of the beneficiaries
acting jointly could bring such a claim, nor could they force the executor to
bring such a claim. It is the statutory authorities given exclusively to the
executor that are at stake when the executor appears in court.Conceptually,
the executor might be said to be an agent of the testator but cannot be said
to be the agent of the beneficiaries. Though the beneficiaries are destined to
be the ultimate recipient of the property, it does not follow the executor is
their mere representative: the executor’s rights to manage the estate are
distinct from the beneficiaries’ interests and are not derived from them.
As the Ohio court noted, the executor is given these management rights
subject to high fiduciary duties, and the beneficiaries are given no rights at
all other than to sue if the duties are unfulfilled.159 This is the essence of the
fiduciary relationship between the executor and the beneficiaries. Under
Texas law executors are given the exclusive management rights but owe the
beneficiaries the highest duties of good faith, fidelity, loyalty, fairness, and
prudence.160 The Minnesota rule reduces the executor’s court appearance
rights in an apparent attempt to ensure the beneficiaries’ interests are
protected, but this ignores the role of fiduciary duties for that purpose.
These duties are imposed by the law precisely because the law gives the
executor the exclusive rights to manage the estate. Because of these duties,
157
§ 222; 17 WOODWARD, supra note 7, § 508.
158
Belt v. Oppenheimer, 192 S.W.3d 780 (Tex. 2006) (malpractice claim in the estate-
planning context may be maintained in Texas only by the estate planner’s client or the client’s
personal representative)
159
Id. at 90-92, 292-294. The Minnesota rule courts could have protected both the historical
understanding and their objective of denying pro se rights to bank executors simply by finding it a
violation of the executor’s fiduciary duties to proceed pro se. However, the courts did not give
this type of fiduciary analysis. Instead, the courts derived the right to appear in court from
beneficial interests– deciding who had the right to appear with reference to who had the rights to
benefit.
160
Humane Soc. of Austin & Travis County v Austin Nat’l Bank, 531 S.W.2d 574 (Tex.
1975), cert. denied, 425 US 976, 48 L Ed 2d 800, 96 S Ct 2177 (1976); McLendon v McLendon,
862 SW2d 662 (Tex. App.—Dallas 1993, writ denied); Ertel v O’Brien 852 SW2d 17 (Tex.
App.—Waco, writ denied).
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161
Judd v. City Trust Sav. Bank, 133 Ohio. St. 81, 91, 12 N.E.2d 288, 293 (1937).
162
Baker v. County Court of Rock County 29 Wis. 2d 1, 8 138 N.W.2d 162, 166 (1965).
Texas probate court judges are not responsible for the acts of independent executors. §§ 145(q),
36, 145(h); 17 WOODWARD, supra note 7, § 75; Id. § 497; 1 DESHAZO, supra note 25, § 1:24.
Young Lawyers Association Needs of Senior Citizens Committee, supra note 23; Pacheco, supra
note 23.
163
Baker, 9 138 N.W.2d at 167.
164
Id.
165
Id.
166
Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996).
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167
TEX. GOV’T CODE ANN. § 81.101 (Vernon 2004).
168
Crain v. UPLC, 11 S.W.3d 328, 333 (Tex. App.—Houston [1st Dist.] 2000, pet. denied),
cert. denied, 532 U.S. 1067 (2001); Davies v. Unauthorized Practice Committee, 431 S.W.2d 590
(Tex. Civ. App.—Tyler 1968, writ ref’d n.r.e.); Stewart Abstract Co. v. Judicial Commission, 131
S.W.2d 686, 689 (Tex. Civ. App.—Beaumont 1939, no writ).
169
See.,e g., Frazee v. Citizens Fidelty Bank & Trust Co., 393 S.W.2d 778, 784-785 (Ky.
1965).
170
TEX. PROB. CODE ANN. §6 (Vernon 2003); 17 WOODWARD, supra note 7, §§ 44-45; 2
DESHAZO, supra note 7, § 14:36.
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171
TEX. DISCIPLINARY R. PROF’L CONDUCT 5.05.
172
Id. 5.05.
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173
See infra pp. 31-32.
174
Ex parte Shaffer, 649 S.W.2d 300 (Tex. 1983).
175
Id. at 301.
176
Id.
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177
Id.
178
Id.
179
Id.
180
In Re Otterness, 181 Minn. 254, 358 223 N.W. 318 (1930).
181
TEX. PROB. CODE ANN. §149C(c) (Vernon 2003); 1 DESHAZO, supra note 25, § 5:75.
HATFIELD.MACRO 8/4/2010 10:05 AM
advice and for defense against fiduciary claims. It is the executor’s rights at
stake in both situations.
182
Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996).
183
Id. at 924-927.
184
Id.
185
Id.
186
See, e.g., Geeslin v. McElhenney, 788 S.W.2d. 683, 684 (Tex. App—Austin 1990, no
writ); Humane Soc. of Austin & Travis County v Austin Nat’l Bank, 531 SW2d 574 (Tex. 1975),
cert denied, 425 US 976, 48 L Ed 2d 800, 96 S Ct 2177 (1976); McLendon v McLendon, 862
S.W.2d 662 (Tex. App.—Dallas, writ denied); Ertel v O’Brien, 852 S.W.2d 17 (Tex. App.—Waco
1993, writ denied).
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beneficiaries are the ―real‖ clients with the ―real‖ interests at stake, which is
the principle of the Minnesota rule cases.187 Instead, the Texas Supreme
Court reasoned along the lines of the Ohio Supreme Court focusing on the
legal rights to manage rather than the rights to benefit. As the Ohio court
made explicit, it is the executor’s personal liability for mismanagement that
ensures proper management—and not a requirement that the executor hire
an attorney to represent the beneficiaries’ interests.
187
―We concluded that, under Texas law at least, the trustee who retains the attorney to advise
him or her in administering the trust is the real client, not the trust beneficiaries.‖ Huie, 922
S.W.2d at 925.
188
Steele, 927.
189
Steele, 928.
190
Steele, 931.
191
Steele, 928.
192
Id.
193
Steele, 930.
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194
Steele, 930-931.
195
For example, rather than considering the case law issued by the Minnesota, Kentucky,
Florida, and Ohio supreme courts discussed above, the court cited lower court rulings from Illinois
and Nebraska, as well as cases from the 6 th, 8th, and 11th federal circuits without acknowledging
that only the supreme court of a state speaks authoritatively as to its law. With no shortage of
state supreme court cases, this is a curious string of citations. Steele, 928.
196
Steele, 928.
197
Dueitt v. Dueitt, 802 S.W.2d 859 (Tex.App.—Houston [1st Dist.] 1991, no writ); Henson
v. Estate of Crow, 734 S.W.2d 648 (Tex. 1987); Price v. Estate of Anderson, 522 S.W.2d 690
(Tex. 1975); see also JUDGE ADELE HEDGES & LYNNE LIBERATO, TEXAS PRACTICE GUIDE:
CIVIL APPEALS §5:38 (2006); 17 WOODWARD, supra note 7, § 178; 29 TEX. JUR. 3D DECEDENTS’
ESTATES §544 (2006).
198
Steele, 928.
199
Steele, 930-931.
200
Steele, 930-931.
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F. Conclusion
Under Texas law, the executor is representing his or her own rights
when he or she (or his or her attorney) appears in probate court. Because
under Huie v. DeShazo, an attorney could appear in court on behalf of the
executor’s exclusive right to manage the estate, the executor has the right to
appear pro se in court with respect to those same rights. Ex parte Shaffer
must be interpreted as the Texas Supreme Court specifically guaranteeing
this right. The Minnesota rule has never been adopted in Texas and is
inconsistent with both Huie v. DeShazo and Ex parte Shaffer.
Independently of these Texas Supreme Court cases, the Minnesota rule
should be rejected because it obliterates the distinction between vesting
management rights in executors and beneficial interests in beneficiaries. It
also disregards the role of fiduciary duties in regulating the executor-
beneficiary relationship. Adopting the Minnesota rule in Texas would raise
professional responsibility issues for Texas attorneys involved in estate
administration, such as forcing them into hyper-vigilant supervision of their
executor-clients to ensure their clients were not inadvertently practicing law
outside of the courtroom. More importantly, the adoption of the Minnesota
rule’s reasoning that it is the beneficiaries’ interests that are the subject of
legal representation would contradict the reasoning in Huie v. DeShazo that
the executor’s attorney owes no duties to the beneficiaries.
201
Steele, 930-931.
202
Steele, 931.
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timely to consider the implications. The chief implication for the probate
court system is how best to accommodate pro se executors. Attorneys need
to be aware of the professional responsibility implications that denying pro
se rights to executors would have, as discussed above, but should also
discuss with their clients their desires regarding permitting, prohibiting, or
regulating their chosen executors’ pro se activities. For executors, the
question becomes not whether or not they can proceed pro se but under
what, if any, circumstances they ought to.
1. National Experience
The problems of pro se representation are well studied, and many
different courts are experimenting with solutions. Pro se representation is
on the rise both at the federal and state levels, with more than 1/3 of the
cases filed in federal district court being pro se.205 There is abundant
203
In a civil proceeding in which plaintiff determined to proceed pro se, no allowance would
be made for the fact that plaintiff was not a lawyer. See, e.g., Bailey v. Rogers, 631 S.W.2d 784
(Tex. App.—Austin 1982). (litigants who represent themselves must comply with applicable
procedural rules). But see, e.g., Bradlow, supra note 84; Holt, supra note 84.
204
Id.
205
Buxton, supra note 80, at 112.
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206
See, e.g., Lois Bloom & Helen Hershkoff Federal Courts, Magistrate Judges, and the Pro
Se Plaintiff, 17 NOTRE DAME. J.L. ETHICS & PUB. POL’Y 475 (2002); Bradlow, supra note 84;
Holt, supra note 84; Kevin H. Smith, Justice for All?: The Supreme Court’s Denial of Pro Se
Petitions for Cetiorari, 63 ALB. L. REV. 381 (1999); Buxton, supra note 80, at 103.
207
Buxton, supra note 80, at 118.
208
Id.
209
See supra pp. 4-8.
210
Id.
211
Id.
212
Buxton, supra note 80, at 106.
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b. Assistance
A more involved level of accommodation for pro se executors would be
to provide assistance in completing specific forms or addressing specific
issues. This level of accommodation might range from the use of a
document examiner to review documents to ensure they comply with basic
requirements to the use of a staff attorney to serve as a ―facilitator‖ to
provide more specific information on procedure and assistance in
preparation of court documents.215 In some states, lawyers providing pro
bono representation or law students enrolled in law clinics are also used to
provide this level of assistance in some courts.216
c. Covering Expenses
A fee charged to pro se executors should cover the courts’ costs for such
programs and, perhaps, even offset other court expenses.
213
Id. at 112.
214
Id. at 123.
215
Id. at 121.
216
Id. at 123.
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2. Providing Flexibility
The testator may prefer to provide flexibility to the executor. For
example, if the testator’s child is sophisticated and the testator’s estate is
relatively simple, the testator might wish to appoint the child as executor
and allow her to make the decision at the time. If the testator is not adverse
to the executor proceeding pro se, he might consider explicit provisions
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addressing the situation. For example, perhaps he would like to prohibit the
beneficiaries from suing unless the executor was grossly negligent in
deciding to proceed pro se, or perhaps he would permit the executor to
proceed pro se only if she posted a bond. Perhaps the most practical
provision would be to allow the executor to proceed pro se only with the
beneficiaries’ consent.
217
Humane Soc. of Austin & Travis County v Austin Nat’l Bank, (1975, Tex) 531 S.W.2d
574 (Tex. 1975), cert denied, 425 US 976, 48 L Ed 2d 800, 96 S Ct 2177 (1976); McLendon v
McLendon, (1993, Tex App Dallas) 862 S.W.2d 662 (Tex. App.—Dallas 1993, writ denied); Ertel
v O’Brien,852 S.W.2d 17 (Tex. App.—Waco 1993, writ denied).
218
Herschbach v. City of Corpus Christi, 883 S.W.2d 720 (Tex. App.—Corpus Christi 1994,
writ denied).
219
TEX. PROB. CODE ANN.. § 230(a) (Vernon 2003); 18 WOODWARD, supra note 28, § 693;
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2. The Real Work of Estate Lawyers and the Real Risk of Pro Se
Executors
Appearing in court to probate a will is a necessary but obviously
insufficient part of estate administration. The most substantial work of
estate administration and the most substantial role of estate lawyers occur
outside of the brief probate hearing. Estate lawyers use their practical
experience in helping the executor locate and value assets, which may
involve choosing between competing appraisals or determining if the
executor has an ownership interest in assets the testator may not even
realized were owned, such as legal claims.220 Estate lawyers guide
executors through income tax, estate tax, gift tax, generation-skipping
transfer tax, and property tax issues. Estate lawyers prepare deeds or other
assignments to the beneficiaries, as well as settlement agreements that
memorialize the distributions from the estate and the beneficiaries’
acquiescence in their propriety. Estate lawyers advise the executor in
dealing with creditors’ claims. Perhaps most importantly, estate lawyers
provide both legal and practical guidance when one or more beneficiaries
appear likely to become cross-wise with one another or the executor. The
Int’l First Bank Dallas, N.A. v. Risser, 739 S.W.2d 882 (Tex. App.—Texarkana 1987)
(disapproved of on other grounds by, Texas Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240
(Tex. 2002)).
220
For example, the testator may have a malpractice claim against his or her estate planning
attorney. See, e.g., Belt v. Oppenheimer, 192 S.W.3d 780 (Tex. 2006).
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221
See WOODWARD, supra note 7, § 284.
222
See §59; Boren v. Boren, 402 S.W.2d 728 (Tex. 1996).
223
See §59.
224
See, e.g., Bloom & Hershkoff, supra note 184; Bradlow, supra note 84; Holt, supra note
84; Smith, supra note 184.
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unlike most pro se litigants whose defeat is consequential only to them, the
estate’s beneficiaries stand to lose. This is a loss the beneficiaries may seek
to recover from the executor. Unfortunately for the pro se executor, there is
never certainty that a probate hearing initially scheduled for the uncontested
docket will remain so.
d. Estate Assets
The job of the executor is to collect the testator’s assets and to distribute
the assets to the beneficiaries. Like most jobs, it is easier said than done.
The ease of this task depends in part on how well organized the testator
was, but even the most organized testator’s assets might not be so easily
collected and distributed. The testator may have legal claims he never
considered pursuing, such as claims against beneficiaries for unpaid debts
owed. May, must or should the executor pursue such a claim? 231 The
225
See §43.
226
See Lehman v. Corpus Christi Nat’l Bank, 668 S.W.2d 687 (Tex. 1984).
227
See Guilliams v. Koonsman, 279 S.W.2d 579, 583 (Tex. 1955).
228
See §69.
229
See §§ 322A, 322B.
230
Id.
231
See, e.g., Russell v. Adams, 299 S.W. 889, 894 (Tex. Comm’n App. 1927); Oxsheer v.
Nave 40 S.W. 7 (Tex. 1897).
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testator’s assets are likely to have changed between the date of the will and
the date of death. What if assets specifically bequeathed to a beneficiary
cannot be found or were sold and replaced with other assets?232 None of
these issues are likely to become evident until after the probating of the
will, yet these types of issues are common complications to an executor’s
attempt to locate and distribute the testator’s assets.
e. Summary
It is impossible to catalog the potential complications of an estate
administration, even one that seems simple on first review. Even an
experienced estate lawyer never knows what all he or she does not know
when considering whether or not to take on advising an executor with
respect to an estate administration. As a practical matter, a pro se executor
bears the risk personally when he or she estimates where upon the
continuum of ease and trouble the estate’s administration will be;
disgruntled beneficiaries will be armed with both the rights of those owed
the highest duties and the certainty of hindsight as to how problematic the
administration became.
D. Conclusion
Executors have the right to proceed pro se to probate a will and
otherwise administer the estate. However, given the inherent uncertainties
of estate administration and the executor’s fiduciary duties to the
beneficiaries, it is likely unwise for most executors to do so. Nevertheless,
the probate courts should consider how best to accommodate pro se
executors in a way that maximizes judicial access without decreasing
judicial efficiency. Since, by definition, Texas attorneys will not be
advising pro se executors, we should consider advising our testator clients
as to the risks and potential benefits of pro se probate and ensuring that the
testator’s balancing of those risks and benefits is reflected in the will
governing the executor.
232
See, e.g., Shriner’s Hospital etc. v. Stahl, 610 S.W.2d 147, 150 (Tex. 1980).