Of course, we always recommend having an attorney represent you in a probate proceeding given all the written and unwritten rules and procedures in probate proceedings. While it costs to have an attorney, it is worth it to get the process done correctly and as quick as possible. With the courts setting and continuing hearings out up to eight months, it can be disappointing to have a matter continued out that long just because one box stating “no issue of a predeceased child” was not checked on a petition.
A recent case (Estate of Sanchez, H045037, filed August 9, 2023, Cert. for Pub. September 8, 2023) held that a personal representative – executor, administrator, special administrator, administrator with will annexed – cannot represent the estate “in propria persona” (commonly noted as “in pro per” – meaning you have no attorney) in a probate action on claims pursued for the benefit of the estate’s beneficiaries. The facts of the case are common in probates and trust administrations – the decedent’s estate plan gave some to wife and rest to children from a prior relationship. The eldest child was appointed the personal representative of the decedent’s estate and she filed a petition under Probate Code Section 850 against her stepmother to force a sale of real property that step-mother co-owned with the estate and another party. The petition was filed in the probate proceedings and included other causes of action such as elder abuse, abandonment, neglect, conversion, wrongful detention, etc.
The court recognized that a personal representative could take certain actions in the probate proceedings without having an attorney represent them – i.e., bringing a petition to confirm the sale of real property. And the court noted the caselaw with holdings that require a personal representative (and trustees, conservators, and guardians) to be represented by counsel in court proceedings outside of the probate court. But the court found that the petition filed by the personal representative in Sanchez in the probate proceedings also contained several actions that are not solely probate actions because they could have been brought in a separate civil action. The court held that the action was brought by the personal representative for the benefit of the estate beneficiaries and not in the furtherance of her duty as the personal representative. When she is representing the estate beneficiaries, regardless that she is also one of the beneficiaries, in a court proceeding, then she must have an attorney represent her in any court action. Her pleadings were struck because the court found the pleadings constituted the unlicensed practice of law.
So, if you are a personal representative or some other type of fiduciary (i.e., trustee of a trust) and you need to file something with the court, you should consult with an attorney to see if it is the type of matter that requires you to be represented by an attorney.