Do Trustees Need Lawyers for Court Proceedings?
DO TRUSTEES NEED A LAWYER TO FILE TRUST PROCEEDINGS IN PROBATE COURT?
Sometimes
TRUSTEES CAN FILE PETITIONS FOR INSTRUCTIONS, AND SIMILAR MATTERS, IN PRO PER
If the trustee of a trust has questions about his or her duties, or actions (s)he may or must take as trustee of the trust, the trustee can file a petition with the court in pro per (without being represented by counsel/acting as his or her own counsel). This is because when the trustee seeks instructions from the court, the trustee is acting on his or her own behalf, and not as the representative of the trust beneficiaries. For that reason, the trustee is not engaging in the unlicensed practice of law when filing a petition for instructions, a petition to modify or terminate the trust, a petition seeking approval of and accounting and the payment of trustee fees, or other similar matters.
A trustee who also has a license to practice law in California (i.e., a California attorney) can file any trust proceedings without engaging other counsel, although strictly speaking these do not count as pro per filings, because the trustee is licensed to practice law.
TRUSTEES MUST HAVE (OR BE) A LAWYER WHEN FILING PETITIONS THAT CONSTITUTE THE PRACTICE OF LAW
As mentioned above, trustees who are licensed attorneys can file petitions and other proceedings with the probate court without hiring other counsel. However, trustees who are not licensed lawyers cannot file court proceedings against third parties without hiring legal counsel to represent them. This is because the office of trustee does not give a non-lawyer standing to represent the trust or its beneficiaries (as legal counsel) in court proceedings, and moving forward without a lawyer constitutes the unlicensed practice of law. In third party court proceedings, the trustee is acting as the representative of the beneficiaries (the persons with the legal rights to or interests in trust property). Since only a licensed lawyer can appear in court on behalf of someone else in California, the trustee must hire legal counsel in these situations.
There is an exception to this rule: a person who is both the settlor of a trust and its sole beneficiary can act without legal counsel in proceedings involving the trust.
If you are the trustee of a California trust, and would like (or need) to file court proceedings, contact an experienced lawyer for an evaluation of your rights, duties, and obligations.
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