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When Can Trustees Represent Themselves In Court?

Non-attorney trustees in California are permitted to represent themselves in court in California if they are not engaging in the unauthorized practice of law.

Division Two of the California Court of Appeals clarified the distinction between when trustees can and cannot represent themselves in the April 2020 case of Donkin v. Donkin.

The Donkin Trustees Filed A Petition For Instructions In Probate Court

In Donkin, trustees of a family trust filed a petition for instructions regarding the distribution obligations under the terms of the trust.   Both the trustees and beneficiaries appealed certain determinations by the California probate court.  The California appeals court issued a limited published opinion on the issue of whether the trustees (non-lawyers who represented themselves) engaged in the unauthorized practice of law in California.

The California appeals court concluded that the trustees did not engage in the unauthorized practice of law because they were seeking judicial clarification regarding how to interpret a trust document and were not acting on behalf of the beneficiaries.

Trustees Can Not Represent Themselves In California If Acting On Behalf of Beneficiaries

The Donkin court first examined the 1998 case of Ziegler v. Nickel, 64 Cal. Ap. 4th 545.  In Ziegler, Division Three of the California Appeals Court concluded that a “non-attorney trustee who represents [a] trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law.”

Ziegler was a lawsuit between a mobile home park and a trust. The trustee could not represent himself in prosecuting the trust’s lawsuit against the mobile home park because:

“‘a trustee’s duties in connection with his or her office do not include the right to present argument [while representing himself] in courts of the state, because in this capacity such trustee would be representing interests of others and would therefore be engaged in the unauthorized practice of law. Stated otherwise, ‘[a] trustee must always act solely in the beneficiaries’ interest. The actions of the trustee affect the trust estate and therefore affect the interest of the beneficiaries. A non-attorney trustee who represents the trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law.”

In non-probate litigation between a trustee and a third-party, the trustee is acting as a fiduciary for the benefit of the beneficiaries.  The trustee cannot represent himself as a non-lawyer.

Trustees Can Represent Themselves In Court If Not Representing The Interests of Beneficiaries

If the issue is a probate litigation, where a trustee is seeking instructions regarding how to interpret the trust document or execute his or her duties thereunder, a trustee can represent himself without engaging in the unauthorized practice of law.  A trustee seeks such instructions in order to effectuate the intent of the trustor, not to represent the interests of the beneficiaries.

The Donkin court stated:

Indeed, as is the case here, the beneficiaries may disagree with the trustee regarding the trust interpretation the court should adopt, and/or what the trustee’s duties are. Under these circumstances, the trustee is adverse to the beneficiaries and thus is not representing the beneficiaries’ interests. The same is true when a trustee disagrees with the need for an accounting or surcharge based on the trustee’s and beneficiaries’ varying understandings of the trust document.

The appeals court likened this case to Finkbeiner v. Gavid (2006) 136 Cal. App. 4th 1417, where the court concluded that in probate litigation between a trustee and beneficiaries, the trustee was not engaging in the unauthorized practice of law by representing herself when filing a petition to modify and terminate the trust.  The trustee was not suing a third party but was instead pursing a petition as part of her fiduciary responsibility for the court.

In Donkin, like Finkbeiner, the matter was in the context of probate proceedings between trustees and trust beneficiaries, not between trustees and a third party in non-probate litigation.  The trustees were not acting on behalf of the beneficiaries but were seeking judicial clarification on how to interpret a trust document. So, the trustees were permitted to represent themselves in California probate court without engaging in the unauthorized practice of law.

The court noted that the trustees wasted the court’s and the beneficiaries’ resources by this action, and that perhaps attorney representation could have avoided such waste.

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San Diego

Merwyn J. Miller

Los Angeles County

Stewart J. Levin

Orange County

Priscilla Madrid

Ventura County

Naomi Stal

San Mateo County

Sally Bergman

San Bernardino County

Fred W. Edwards

Stanislaus County (Modesto)

Thomas Bonte

Santa Clara County

Nicholas P. Jellins