A Strong Offense
A Stronger Defense
In a recent case before the New York Surrogate’s Court, an executor, the only beneficiary under a will, tried to represent the estate pro se. Big mistake! The Court, in Matter of Van Patten, held that the executor was improperly practicing law without a license.
The background is as follows: Decedent Philip Van Patten was an income beneficiary of a trust under the will of Charles A. Van Patten. Carole Van Patten was the executor of the estate of Philip. After the trustee filed an accounting for the trust under Charles’ will, Carol, as executor of Philip’s estate, filed pro se objections to the trustee’s accounting. The trustee moved to dismiss the objections asserting that the executor lacked legal capacity to sue, arguing that Carol could not represent the interests of the estate pro se.
The court agreed and noted that while a person may generally represent him or herself in litigation, “when the interests of an estate are at issue, the fiduciary of the estate is named as a party not as an individual, but rather in her capacity as a representative of the persons interested in the estate.” The court held that pro se representation in this matter, where the party was appearing for others interests, and not only her own, constituted the practice of law without a license. Even though Carol was the only beneficiary of Philip’s estate, the court found that she also had fiduciary responsibilities to creditors of the estate and thus she did not represent only her own beneficial interests. The Court cited the law of the following states that follow the same principle: Alabama Arkansas, Connecticut, Florida Massachusetts, Nebraska, Ohio, and Wisconsin.