Probate v. pro se: Why Texas law requires executors to hire an attorney for probate proceedings

By Maria Ortiz, a Texas-based attorney and FreeWill Fellow

Legal fees play a crucial role in the accessibility of quality legal services. Even if a client needs to hire an attorney, they may not have the funds to do so. In some situations, such as in a civil lawsuit, an individual can appear in court to represent themselves. This is known as appearing pro se.  

However, in Texas, an individual isn’t allowed to appear pro se in a probate proceeding where they seek to be appointed executor of an estate for someone who has died.

Because of this requirement, grieving families must interview multiple attorneys in hopes that the attorney can take on their case while charging a fee they can afford.

This poses a unique issue that some fail to consider when preparing their estate plan.

What role does an executor play in the probate process?

Before we unpack this concept further, let's consider the role that executors play in probate matters.

An executor is responsible for distributing assets of an estate according to the decedent’s (someone who has died) will, while being mindful of the interests of beneficiaries and creditors. An executor is required to set their personal interests aside in assuming the role of executor, and act in accordance with duties owed to the estate and its beneficiaries.

For example, say Decedent Debra’s will appoints Executor Ed to serve as the executor of her estate. In her will, Decedent Debra names three beneficiaries to inherit the assets in her estate: Executor Ed, Beneficiary Bob, and Beneficiary Betty.

In this example, when serving in his role as executor, Ed owes a duty to Bob and Betty, and therefore can’t act in his own self-interest with regards to assets of the estate.

Why does Texas law require an executor to hire an attorney?

This rule is based on language found in the Texas Government Code regarding the practice of law.

Section 81.102 of the Texas Government Code prohibits an individual from engaging in the practice of law unless the individual is a member of the state bar (i.e., passed the Texas Bar Exam).

The Texas Government Code defines the "practice of law" as "the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court" (Section 81.101(a), Tex. Gov. Code).

To probate a will, executors must file documents and appear before a judge to put certain facts on the record, including: the date and county in which the decedent died; the approximate value of the estate; and whether there are any known creditors of the estate. An executor owes a duty to the estate and its beneficiaries and is not simply appearing in court to represent their own self-interests. As a result, the executor’s actions fall within the definition of the practice of law as defined (and prohibited) by the Texas Government Code.

Therefore, if an executor were to appear without legal representation in a court proceeding to probate a will, the executor would have engaged in the unauthorized practice of law.

For this reason, Texas Courts require that an executor hire a licensed attorney to represent the executor during the probate process.

Let’s explore this further using our previous example. Once he discovers that he’s been named executor in Decedent Debra’s will, Executor Ed decides to forego hiring an attorney. He instead prepares the necessary documents to probate Decedent Debra’s will himself.  

When Executor Ed tries to file the necessary pleadings in probate court, the court does not accept his filing because he is not represented by an attorney and is not authorized to engage in the practice of law.

Now, suppose Executor Ed decides to hire an attorney to assist him in this matter. Because the attorney is authorized to practice law, the attorney can prepare and file necessary documents and represent Ed in serving as executor of Decedent Debra’s estate.

How can a testator plan for the hiring of an attorney?

With an attorney comes legal fees. Depending on where your attorney lives, their expertise, and their years of experience, these fees can become costly. If your executor isn’t prepared for these expenses, it could be difficult for them to probate your estate.  

Unless your executor qualifies for free legal aid, they’ll have to pay these fees out of their own pocket. An executor can be reimbursed for certain expenses,  but they can’t use funds from the estate until the will is admitted to probate.

There are a few things a testator (the person who makes a will) can do to assist with these expenses. First, they should consider setting aside some funds into a separate account and name the executor as a beneficiary on the account. Once a testator designates a beneficiary, the account should transfer as a non-probate asset. This means the executor can immediately access the money in the account upon proof of the testator’s death.

To be sure that the executor can access these funds, the testator should consult with their bank regarding the requirements needed to affect the transfer upon the testator’s death.

Do I need a lawyer in every probate-related matter?

Technically, no. There may be some circumstances where an individual can represent their own personal interests and isn’t required to prepare documents on behalf of a third party. In these limited circumstances, a party is allowed to appear pro se. These situations tend to arise in contested probate matters and don’t apply to situations where an individual applies to be appointed executor.

However, should the pro se party later become responsible for representing the interests of a third party or entity, the pro se party must hire an attorney.

How do I know whether I am responsible for representing the interests of a third party?

When in doubt, it is wise to seek the advice of an attorney before moving forward with your probate matter.

Rather than delay the probate of the estate, or potentially engage in the unauthorized practice of law, it is best to rely on an attorney’s expertise to ensure that you’re in compliance with Texas law.