Do I Have to Hire an Attorney to Probate a Will?

In Denton County and most Texas counties, if you have been named the executor of an estate, you will need to be represented by an attorney in probate court. There may be some exceptions, such as if you are the sole heir and there are no debts, but in all other situations, you must be represented by an attorney licensed in the State of Texas.

Why an Attorney is Required to Probate a Will

Only attorneys are licensed to represent others in court. According to the Denton County Probate Court, “Generally, only an attorney licensed in the State of Texas may represent a third person or entity in a judicial proceeding in the State of Texas.” In a probate hearing, the executor is not representing just himself or herself, but the interest of the other people who are heirs or beneficiaries.

If this type of representation were allowed, it would constitute an “unauthorized practice of law.” Texas courts will not allow this unauthorized practice of law.

The executor has a fiduciary duty to heirs, beneficiaries, and creditors. This fiduciary duty gives rise to legal obligations that require legal counsel. The attorney you hire will represent you in your capacity of executor. He or she will also assist you in representing those for whom you are responsible.

An Executor of an Estate May Not Proceed Pro Se

Pro se litigants are individuals who have not hired an attorney. They appear in court to represent themselves. Courts allow this only when the litigant is representing only himself. Pro se litigants are never authorized to represent the legal interests of another person. Since executors of estates are almost always representing the interests of others, they are never granted the right to proceed pro se.

Limited Exceptions That May Allow You to Proceed Pro Se in Probate Court

Denton County Probate Court has identified specific types of proceedings where you may proceed in pro se. These are instances when you are “truly representing only yourself.” Those exceptions are:

• The executor is the only beneficiary and there are no debts against the estate except for those secured by real estate liens. (This is called a Muniment of Title proceeding.)
• Where the filing of an Affidavit of Heirship may be appropriate.

Whether proceeding under either of these two exceptions is appropriate is a decision that needs to be made by legal counsel.

Attorney Aubry Dameron at Springer & Lyle can answer your questions regarding probating a will. She will review the detailed circumstances unique to you and explain to you how she can represent you if you are the executor of the estate. Contact her at 940-387-0404 to schedule a consultation.