06 Nov Pro Me? Pro Se? Pro What? Representing Yourself In Court: Justin Crain, Partner
There is common thinking that says if you want something done, do it yourself. Although this might be true in some situations, it is not the best approach when it comes to representing yourself in court. Abraham Lincoln said, “He who represents himself has a fool for a client.” Why would he say such a thing? Likely the answer lies in the fact that a person representing themselves will have their own emotions and opinions to struggle with that could cloud their ability to have good judgment and hamper their ability to see their case and its facts in a rational way. Additionally, in a situation where a person who is not an attorney wishes to represent themselves, there is the additional disadvantage of having not received the legal training or having the legal experience to provide the best representation in a given matter. Despite these warnings, there are many individuals who decide to represent themselves.
Pro se is the Latin term that means “in one’s own behalf” and it describes the scenario where a person or party represents themselves in court without the assistance of an attorney. Texas law supports this concept. For example, Texas Rules of Civil Procedure Rule 7 states that “Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.” If a person is allowed to represent themselves (and by all accounts, an increasing number of people are choosing to do so), then it is important to ask whether there are situations in which an individual is required to hire an attorney and may not act pro se?
Texas Rules of Civil Procedure Rule 7 states that any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court. What Rule 7 does not state is that an individual can represent other parties. This means that preparing and filing pleadings and appearing in court in a probate matter without the assistance of counsel would constitute the unauthorized practice of law because an executor is not representing themselves but is also representing the interests of other parties such as beneficiaries and creditors. To clarify the court’s opinion, any courts have standing orders that explain this difference and state the requirement that an attorney is required in probate cases. (see Collin, Dallas, Denton, Rockwall, and Tarrant County Local Rules below)
The common theme in the local rules of different courts is that they do not allow personal representatives, including independent and dependent administrators or executors and temporary administrators, to be appointed without representation by an attorney because the person in those roles is not just representing themselves, but they are also representing others. A personal representative has a fiduciary duty to represent the best interests of the heirs, beneficiaries and legitimate creditors of the estate and an unlicensed person is not allowed to question witnesses before the court, represent beneficiaries, and perform other acts involving the practice of law.
This policy of not allowing unrepresented individuals to be appointed as executors or administrators is supported in the local rules of the courts by Steele v. McDonald, 202 S.W.3d 926 (TX Ct. App., 10th Dist., Waco 2006), where the court held that an independent executor that had discharged his attorney (and was therefor appearing pro se) was not allowed to appear as executor pro se because the executor was litigating rights in a representative capacity rather than on its own behalf.
If an executor or personal representative is representing the rights of others, and as a result must be represented by a licensed attorney, are there instances where a person in probate court is representing themselves only? The answer is yes. The courts generally recognize that a person represents themselves in the following limited instances:
- If they are the sole beneficiary offering a will for probate as Muniment of Title and there are no debts owed by the decedent;
- If they are a non-corporate creditor of a probate or guardianship estate;
- If they are a non-corporate party in an ancillary civil action;
- If they are a guardian filing an Annual Report of the Person;
In these limited instances where an individual is recognized as representing only their own interests, they may be allowed to appear pro se in probate court, although the courts strongly recommend having an attorney for even the cases that do not require one (see the Collin County statement below).
The question of whether you can represent yourself in probate court and appear pro se or not depends on whether an individual is representing only their interests or the interests of others. In instances where the court will be granting authority to a personal representative or executor of an estate, that representative is representing multiple parties other than themselves and as a result, the probate courts require licensed attorneys to perform those acts involving the practice of law and representation of others. However, in limited circumstances where an individual would only be representing themselves, an individual may appear pro se in the case with the approval of the court. Although limited circumstances exist where a person is allowed to represent themselves in a probate court, given the uncertainties of estate administration including the possibility that any uncontested estate could easily become contested, given the legal interpretation and decision making that surround the administration of an estate, and considering the fiduciary duties of a person in such a role, it is likely unwise for most people to act on their own behalf without the assistance of an attorney even if a court would allow it.
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You can read official statements from various counties here:
Collin County: https://www.collincountytx.gov/probate/Pages/general.aspx