Probate Court and Representing Yourself
Wills, Estate Planning, and Probate
Here, learn why you need an attorney for cases in probate court, which is the kind of court that determines how the assets of a deceased person are distributed. These types of cases often involve multiple parties, including heirs and creditors.
Why do I need an attorney for a probate case?
In most probate cases, you would not just be representing yourself. You would also be attempting to represent other people, such as beneficiaries, heirs, creditors, or the estate of a deceased person.
In Texas, only a licensed attorney may represent another person or a business entity (read Unauthorized Practice of Law to learn more). You may represent only yourself in court. For example, you can represent yourself in a divorce—but you cannot represent the spouse you are divorcing.
What if my family decides that I can take responsibility for the estate?
A personal representative represents the interests of beneficiaries and creditors. The responsibility to act for the benefit of another is known as a fiduciary relationship. Being a fiduciary means you have legal obligations and responsibilities that require legal expertise. If you are the personal representative, a lawyer represents you in that role and helps you fulfill your responsibilities correctly.
What if I am the only heir to an estate?
The only proceedings that you can handle without having a lawyer are those in which you truly represent only yourself. For example, you may apply to probate a will as a muniment of title if you are the sole beneficiary and there are no debts against the estate other than those tied to the home, such as a mortgage or home improvement loan.
The Texas Supreme Court has ruled that executors may represent themselves if they are the only heir. To represent yourself in probate court, there would have to be a valid will, and you must be both the executor and the only beneficiary. (Suday v. Suday) .
Most counties in Texas allow you file a small estate affidavit on your own (pro se).
Can I represent myself if the deceased person did not have a will?
In this situation, no—you cannot represent yourself, because Texas law requires the judge to determine who the heirs are, and what share of the estate each heir receives. A lawyer must file an Application for Determination of Heirship. The judge also appoints an attorney ad litem to research the family history of the deceased person. During a court hearing, the judge listens to the testimony of the person who files an application for administration, any witnesses, and the attorney(s) ad litem.
Related Guides
I want to use a Small Estate Affidavit to probate an estate.
Small Estates (Transferring Property When Someone Dies)
Related Articles
-
Probate Court Basics
This article explains common probate court concepts. Probate court is the type of court that handles wills. -
Probating an Estate Without a Will
Not all of a deceased person's property and debt have to be distributed through court. -
Handling an Estate
This article discusses some different methods for handling an estate in Texas.