Probate, trust, guardianship and inheritance litigation
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Does a Texas Trustee Need To Be Represented By a Licensed Attorney?

Yes, a Texas trustee is required to be represented by a licensed attorney, and cannot represent the interests of third parties without a license to practice law.

In Lorie Bernice Sharpe Trust v. Phung, the Texas Court of Appeals, Third District, Austin, dismissed an appeal for failure of the trustee to have an attorney represent the trust in the appeal.

Lorie Sharpe, the trustee of the Lorie Bernice Sharpe Trust, filed a notice of appeal, pro se (without an attorney), from the Texas trial court’s summary judgment against the Trust.  The appellate court informed Sharpe that a trustee or other representative of a trust may not appear pro se in a representative capacity, and that an attorney representing the trust must file an amended notice of appeal to avoid dismissal of the appeal.  The trustee did not respond to the appellate court’s request, and nor did any attorney on behalf of the Trust.

A Texas Trustee May Not Appear Pro Se As Trustee

The Texas appeals court reviewed the black letter law regarding the requirement for a trustee to be represented by an attorney:

A trustee may not appear pro se in her representative capacity as a trustee. See In re Guetersloh, 326 S.W.3d 737, 739-40 (Tex. App.—Amarillo 2010, orig. proceeding) (holding that trustee may not appear pro se in representative capacity as trustee of trust); see also, e.g., Steele v. McDonald, 202 S.W.3d 926, 928 (Tex. App.—Waco 2006, no pet.) (holding that independent executor may not appear pro se in representative capacity for estate). Rule 7 of the Texas Rules of Civil Procedure allows a person to represent himself or herself pro se only to litigate rights on his or her own behalf, not to litigate rights in a representative capacity. Tex. R. Civ. P. 7; Kaminetzky v. Newman, No. 01-10-01113-CV, 2011 WL 6938536, at *2 (Tex. App.— Houston [1st Dist.] Dec. 29, 2011, no pet.) (concluding appellant could not represent pro se two corporate defendants as assignee of corporations); see also Kunstoplast of Am., Inc. v. Formosa Plastics Corp., U.S.A., 937 S.W.2d 455, 456 (Tex. 1996) (although corporate officer could perform “specific ministerial task of depositing cash with a clerk in lieu of a cost bond,” nonlawyer may not represent corporation in court).

According to Texas law, only a licensed attorney is allowed to represent other parties. See Tex. Gov’t Code §§ 81.101-.102 (prohibiting practice of law in Texas unless person is member of state bar); id. §§ 83.001-.006 (prohibiting unlicensed persons from practicing law without a license); see also 1 Fox 2 Prods., LLC v. Mercedes-Benz USA, LLC, No. 03-20-00101- CV, 2021 WL 81865, at *4 (Tex. App.—Austin Jan. 7, 2021, no pet. h.) (dismissing corporate appellant’s issues raised in brief because LLC’s owner could not represent entity pro se); Jimison v. Mann, 957 S.W.2d 860, 861 (Tex. App.–Amarillo 1997, order) (per curiam) (striking documents filed by layperson having no authority to file them on behalf of another). The Texas Legislature has defined the practice of law to include, among other things, “the preparation of a pleading or other document incident to an action.” Tex. Gov’t Code § 81.101(a). Consequently, if a nonattorney files documents on behalf of a trust in an appeal, this amounts to the unauthorized practice of law. See In re Guetersloh, 326 S.W.3d at 740 (concluding nonattorney’s appearance in trial court on behalf of trust amounted to unauthorized practice of law).

Why Does a Texas Trustee Have To Be Represented By a Licensed Attorney?

We have written about the necessity of an estate representative to have counsel in Does a Texas Estate Need To Be Represented By a Licensed Attorney? The reasons underlying the requirement for attorney representation are the same whether a Texas trust or estate is at issue: a trustee or estate representative is litigating rights in a representative capacity, not an individual capacity, and cannot represent the interests of third parties without a license to practice law.

Here, the failure by the Texas trustee to obtain a licensed attorney to represent the trust in the appeal resulted in dismissal of the case.  If you need representation in an appeal in a Texas trust dispute, contact a Texas probate lawyer to help you.

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