Can I Probate a Will Without a Lawyer in Texas?
by Russell Aldrich | January 16, 2024
Summary: Most individuals seeking to probate a will in Texas are required to hire an attorney to represent them in the probate proceeding. Probate without an attorney constitutes the unauthorized practice of law and is generally prohibited by applicable legal authorities and the local rules of the state’s statutory probate courts. A narrow exception exists for estates in which the probate of a will is sought as a muniment of title only by the sole beneficiary named in the will. Even if rules did not prohibit the probate of a will, it would still be advisable to retain an experienced probate attorney to ensure that all applicable rules and legal requirements are abided by and to avoid potential liability for breach of fiduciary duty.
Attorney Usually Required in Texas Probate Proceedings
“Do I have to have a lawyer to probate a will?”
Or,
“Can I probate a will myself?”
Or,
“Why do I need an attorney to probate a will?
Long before they ever set into my office, many of my clients will have already entered one or more of these search queries into Google to see if they could avoid hiring an attorney to probate a will and go it alone (called “pro se” representation in legal jargon) in probate court. After all, many of the wills they seek to have admitted to probate were often drafted without the help of an attorney – handwritten wills, online wills, wills made from DIY kits from places like OfficeMax or Office Depot, wills on napkins – I’ve seen them all (and, incidentally, many of these homemade wills end up increasing the cost of probate, but I digress…).
In any event, answer to the question “can I probate a will without a lawyer” is, in most cases, a resounding “no.”
I suspect that many people think that this answer is little more than self-serving hot air; a sales pitch made by Saul Goodman types everywhere to line their pockets by billing for unnecessary legal services. But in reality, the answer to why an attorney is required to probate a will is found in Texas law.
Why an Attorney is Required to Probate a Will
Texas Government Code Section 81.101 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 as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.”
Section 81.102 of the Texas Government Code further provides that only attorneys in good standing with the state bar are authorized to practice law in Texas, with few exceptions (none of which are relevant to the pro se probate of a will).
Probate requires the preparation of pleadings, affidavits, and other documents, as well as an appearance in front of a judge in probate court. If these documents are prepared or an appearance is made in probate court “on behalf of a client,” then, this constitutes the “practice of law” pursuant to Texas law.
Therefore, an individual seeking appointment as an executor in a probate proceeding without a lawyer may constitute the unauthorized practice of law, because that person is, effectively, acting on behalf of clients – namely, the estate’s beneficiaries, heirs, and/or creditors. See Steele v. McDonald, 202 S.W.3d 926 (Tex. App. – Waco, 2006). Additionally, if a pro se probate applicant seeks to obtain an economic benefit for himself or herself, then the probate of a will without a lawyer may also subject them to criminal prosecution pursuant to Section 38.123 of the Texas Penal Code.
For good measure, the local rules of most Texas counties with statutory probate courts incorporate the prohibition against pro se executors and administrators into their local rules as well:
- Bexar County
- Travis County
- Galveston County
- Hood County
- Fort Bend County
- Harris County
- El Paso County
- Collin County
- Denton County
- Dallas County
- Tarrant County
Probate Without an Attorney: The Muniment of Title Exception
A small exception for pro se applicants exists in instances where they seek to probate as a muniment of title a will in which names them as the sole beneficiary of the estate. Probate as a muniment of title is available in simple estates in which the decedent never applied for or received Medicaid benefits and where there are no creditors of an estate. It is generally appropriate only in the simplest of small estates; for example, when the only property of an estate is a house that needs to be transferred to the sole beneficiary named in the will. The percentage of cases qualifying for this exception and for which probate as a muniment of title is the preferred probate procedure is small, and in most instances the appointment of an executor will be needed to administer the estate.
Experienced Probate Attorney is the Key to Success
Even if the rules prohibiting regarding pro se probate proceedings did not exist, in the vast majority of estates it would still be advisable to retain the services of an experienced probate lawyer with expertise in Texas estate law. Failure to abide by the rules and requirements of the Texas Estates Code may result in liability for the executor and subject them to a breach of fiduciary duty lawsuit.
If you have questions about the probate of a will, then please complete our online questionnaire to set up a free consultation with one of the Aldrich Law Firm, PLLC’s estate attorneys today so we can help you chart out the best roadmap to finalize the affairs of the recently deceased.
