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self-study / Legal Ethics

Nov. 2, 2023

Appellate ruling limits appearances by trustees and executors in pro per

Mark J. Phillips

Shareholder, Lewitt Hackman


Mark is a certified specialist in estate planning, trust & probate law by the State Bar of California.

Jake V. Phillips

Associate, Sheppard Mullin

California law allows litigants to appear individually on their own behalf, in propria persona or “in pro per.” However, individuals cannot represent others in court unless they are licensed attorneys. The difference between these two capacities can become blurred in probate and conservatorship matters when it is unclear on whose behalf a fiduciary appears. The recent case of Sanchez v. Peralta (filed 8/9/23, Sixth Appellate District) brings new clarity to the ability of fiduciaries to appear on their own behalf in litigated matters.

California Bus. & Prof. Code Section 6125 provides “No person shall practice law in California unless this person is an active licensee of the State Bar.” Under this statute, a person who is not a licensed attorney cannot appear in court for another person. Russell v. Dopp (1995) 36 Cal.App.4th 765, 774. It is well settled that this prohibition applies to fiduciaries appearing in civil court, outside the probate context where they are appearing on behalf of the beneficiaries that they serve. In these circumstances, a personal representative (executor, administrator, conservator, or trustee) must have counsel to prosecute or defend claims on behalf of the estate or trust.

In City of Downey v. Johnson (1968) 263 Cal.App.2nd 775, the court determined that a fiduciary could not represent himself in pro per in a civil eminent domain action brought by a city against a property owner and her son as the conservator, and later executor, of her estate. The son proceeded to defend the suit in pro per and filed an appeal without counsel. The appellate court found that the son, acting as fiduciary, could not justify appearing pro per on the theory that he was “practicing for himself” because he was, in reality, representing the interests of the estate. Additionally, the court decided the son could not appear in pro per because the action was “not an integral part of the proceedings within the jurisdiction of the probate court.” Id. at 778.

In Hansen v. Hansen (2003) 114 Cal.App.4th 618, an appellate court considered the proper remedy where a fiduciary improperly appeared in pro per. There, the personal representative of an estate proceeded without counsel in a civil action against her sister for breach of contract, misrepresentation, and breach of fiduciary duty. The appellate court remanded the case with “direction to the trial court to strike the complaint without prejudice” because the personal representative was not entitled to appear in pro per. However, citing Downey, the court left open the possibility that the personal representative “may have been able to present the claims…in a petition in the probate proceedings.” Hansen at 622. Although the appellate court did not decide the issue, Hansen noted that an executor may be able to proceed in pro per in probate proceedings “affecting rights personal to the executor’s office.” Id. at 622.

It is undisputed that a personal representative can represent himself or herself on issues personal to them; filing an account, petitioning for determination of the meaning of a will or trust, seeking approval of a proposed plan of distribution, or for an award of their fees. Additionally, what Downey and Hansen make clear is that when an action is prosecuted or defended outside of the court in which the probate or trust matter is pending, the personal representative acts on behalf of the beneficiaries, not on behalf of themselves, and thus is required to have counsel. However, those cases left open the question of whether a personal representative was prohibited from prosecuting or defending in pro per an action against third parties filed in the court in which the probate, trust or conservatorship matter was pending.

This becomes increasingly urgent when litigants employ Probate Code provisions permitting disputes with third parties to be heard in the probate court that would otherwise require a separate civil action. In Sanchez, Leslie Ann Peralta, in her capacity as executor of the estate of her father, Frank Sanchez, filed in the probate matter an action for partition by sale of real property and for other relief against her father’s surviving spouse, Caroline Sanchez, who was specifically disinherited from that portion of the estate under her father’s will. In her petition, filed in pro per, Leslie alleged that Caroline had improperly withdrawn funds from an account containing proceeds of a reverse mortgage on property belonging to the estate, along with requests for other relief. The petition was filed under Probate Code Sections 850 and 855, pursuant to which claims that would otherwise have to be filed as a separate civil action can be heard by the judge handling the probate case. These petitions have become more common in recent years, being perceived as probate friendly and conducted more swiftly than civil actions with which probate and trust practitioners are often unfamiliar. Caroline replied with a motion to strike, arguing that Leslie’s claims were “general litigation claims,” and therefore under Downey and Hansen, Leslie as executor of the estate could not appear in pro per in her representative capacity, even in the probate court.

Leslie opposed Caroline’s motion to strike, contending that Section 850 authorized her to file the partition action, along with the related causes of action, in the probate proceedings, and that Hansen and Downey only prevented her from appearing in pro per in matters filed outside of the probate context.

After argument, the trial court issued its order granting Caroline’s motion to strike with twenty days leave to amend to give Leslie the opportunity to retain counsel. Although the record shows that Leslie consulted with counsel, she did not file amended pleadings, electing instead to file an appeal of the trial court’s ruling, again in pro per, arguing that Downey and Hansen did not bar her from appearing in pro per in the case in which she was the executor. (Her ability to produce considerable legal documents and navigate the procedure on her own was explained in the record by the fact that she was a law school graduate, but not admitted to the bar.)

The appellate court in Sanchez disagreed, ruling that even within the probate proceeding, Leslie as Executor could not appear without counsel. It was not a matter of the court in which the fiduciary appears, the court reasoned, but whose interests the fiduciary was representing. In other words, a fiduciary may appear pro per in probate court to represent their own interests but may not do so in any court where they are representing the interest of others rather than themselves. The court stated:

“That Leslie brought the petition pursuant to section 850 does not alter the fact that she did so for the benefit of the estate’s beneficiaries, including herself, rather than to fulfill her duties as executor and personal representative. … Similarly, the fact that the Probate Code … authorizes the personal representative to commence, maintain, and defend actions for the benefit of the estate or against the estate (§ 9820) and to bring an action against co-tenants for partition of any property in which the decedent left an undivided interest (§ 9823, subd. (b)), does not by implication allow the personal representative to do so without retaining counsel where those actions are brought for the benefit of the estate beneficiaries, and not in the furtherance of the representative’s duties as executor and personal representative.”

In reaching its conclusion, the court relied on the recent case of Donkin v. Donkin (2020) 47 Cal.App.5th 469, in which the court permitted a pro per trustee to argue its proposed interpretation of a trust. Donkin, in turn, had distinguished between two earlier cases that explored the similar rights of trustees to so appear, both in the probate context, as opposed to a separate civil department. In the first of those, Zeigler v. Nickel (1998) 64 Cal.App.4th 545, the court held that a nonattorney trustee could not represent a trust in an action between the trust and a mobile home park. In the second of those, Finkbeiner v. Gavid (2006) 136 Cal.App. 4th 1417, the court reached the opposite conclusion, holding that a nonattorney trustee is permitted to appear in pro per in litigation between herself and the beneficiaries of the trust in a petition for modification, brought as a necessary part of her fiduciary duties. The key difference, the Donkin court reasoned, was that, like Finkbeiner, the trustee was engaged in a matter “between trustees and trust beneficiaries in the context of probate proceeding, not between trustees and a third party in nonprobate litigation.” Id. at 473.

Sanchez will be cited for its holding that the appellate court has the same authority as the trial court to strike a nonlawyer’s action for the improper representation, says Claire A. Melehani of Gates Eisenhart Dawson, the attorney who argued the case in the court of appeal. But also important, she stated, is that the decision provides clearer guidance on when nonattorney fiduciaries will be permitted to argue their own matters in the probate court.

The rules for pro per appearances are more defined with Sanchez, but there may still be gaps between the cases. Can a nonattorney trustee or executor appear in pro per in a matter against a third party when they are the only beneficiary? Melehani believes they can. If the action is against the only other beneficiary? Again yes, she believes, as the trustee is not appearing on behalf of any other non-fiduciary beneficiary. So there is room for more decisions in this judicial space.


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