Probate, trust, guardianship and inheritance litigation
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Does A New York Fiduciary Need A Lawyer?

A New York fiduciary does not need a lawyer and is permitted to represent himself or herself in court if representing his or her own interests and not the interests of others.  This rule protects beneficiaries and also protects a New York fiduciary from not engaging in the unauthorized practice of law.

A New York Fiduciary Needs An Attorney If The Interests Of Others Are At Issue

In Matter of Van Patten, the Surrogate’s Court determined that a New York executor was practicing law without a license by not having an attorney in court.

In this case, the Decedent, Phillip Van Patten, was an income beneficiary of a testamentary trust.  Decedent’s surviving spouse, Carol, was the executor of the New York estate.  As the executor, and without a lawyer, Carol filed objections to the trustee’s accounting.  The trustee of the trust moved to dismiss the objections filed by Carol, arguing that Carol was not allowed to represent the interests of the estate without an attorney.

The New York Surrogate’s Court agreed with the trustee, stating:

[W]hen the interests of an estate are at issue, the fiduciary of the estate is named as a party not as an individual, but rather in her capacity as a representative of the persons interested in the estate.

If a New York fiduciary is representing interests other than her own, the fiduciary must be represented by an attorney.  If the fiduciary is not represented by counsel, then they are engaging in the unauthorized practice of law.

In Estate of Walsh, the Surrogate’s Court, Bronx County, determined that a New York fiduciary could not represent himself in his fiduciary capacity, stating:

Regardless of whether there is truth to the adage that persons who represent themselves have fools for clients, individuals have a right to represent themselves because it is their own individual liberty or property interests that are the subject of the litigation. However, this right may not be extended to nonattorney, nondistributee personal representatives, because it is the interests of decedents’ widows and orphans, rather than their own, that are at stake. To allow such personal representatives to represent themselves pro se in their fiduciary capacity would not only violate the proscription against practicing law without a license, but would also jeopardize the rights of the widow and orphans seeking to recover for the pecuniary loss they incurred as a result of the decedent’s wrongful death.

When Does A New York Fiduciary Not Need A Lawyer?

A New York fiduciary is not required to be represented by a lawyer if they are representing solely their own interests.  In Van Patten, even though the surviving spouse was the only beneficiary, the Surrogate’s Court still determined that she was representing the interests of others in her accounting objection because she had fiduciary responsibilities to the creditors of the estate.

A New York fiduciary might be considered to solely be representing their own interests in cases of will interpretation or when seeking instruction for how to fulfill duties.  We have written about a similar rule in California, here.  However, even in such cases, it could be argued that the real parties in interest are the beneficiaries, because their rights might hinge on the outcome of any such proceeding.  The line between self-representation and the unauthorized practice of law for a New York fiduciary is not well-defined, and therefore best practice is to retain a lawyer.


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