Cite as H045037
Filed August 9, 2023, Cert. for Pub. September 8, 2023
By Jaime B. Herren
Holland & Knight LLP
Headnote: Unauthorized Practice of Law –When Personal Representative Must Have Counsel
Summary: A personal representative may not represent the estate in propria persona even in the probate action on claims pursued for the benefit of the estate’s beneficiaries.
Frank died leaving his interest in his San Jose home 50% to his wife, Caroline, and 50% to his children from another relationship. Frank had no children with Caroline. Leslie, his eldest child, was appointed executor and personal representative. Among other things, Leslie proceeded pro per to file for partition under Probate Code section 850 within the probate action. Caroline moved to strike on the basis that Leslie could not proceed without counsel. The probate court observed that it was an action against third parties that could have been raised in a separate civil action. The court struck Leslie’s petition with leave to amend and time to secure counsel.
Leslie appealed but did not amend or obtain any legal counsel who appeared in the probate action or appeal. Leslie, in pro per, made various filings with the Court of Appeal. Caroline moved to dismiss the appeal, arguing again that Leslie could not proceed without counsel.
The Court of Appeal found that the trial court did not err. Leslie’s claims were made for the benefit of estate beneficiaries such that her filings amounted to the unauthorized practice of law on their behalf. It also granted Caroline’s motion to strike Leslie’s filings with the Court of Appeal for the same reason and, having no lawfully filed opening appellate brief, dismissed the appeal. Leslie’s actions were not taken to fulfill her duties, rather they were taken to benefit the estate’s beneficiaries and, as such, amounted to the unauthorized practice of law.