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Requiring attorney signatures on probate affidavits

Travis County Probate Court No. 1 is rejecting affidavits in lieu of inventory filed by non-lawyer personal representatives pursuant to Texas Probate Code Section 250 unless they also include the signature of the attorney of record. Judge Guy Herman believes that the filing of an affidavit by a non-lawyer personal representative constitutes the unauthorized practice of law. He also thinks that there is a strong policy argument for requiring the attorney of record to sign since it lets the court know that the attorney is aware of the filing and is still involved in the administration.

Judge Guy HermanIn Steele v. McDonald, 202 S.W.3d 926 (Tex. App. -- Waco 2006), the court held that a non-lawyer may not appear pro se in the capacity as an estate's independent executor. The court reasoned that, since the executor is acting in a representative capacity, appearing pro se would constitute the unauthorized practice of law. A Texas court also has prohibited a non-lawyer trustee from appearing in a lawsuit in his representative capacity. In re Guetersloh, 326 S.W.3d 737 (Tex. App. -- Amarillo 2006).

The Probate Code requires personal representatives to file affidavits of compliance with Section 128A and a sworn inventory or affidavit in lieu thereof. Most attorneys routinely sign the inventory. However, there is nothing in Section 128A or Section 250 requiring attorneys to sign the inventory or those affidavits. I do not think filing a statutorily-required factual statement constitutes practicing law, so I do not think the attorney's signature should be required. The forms for Section 128A affidavit and affidavit in lieu of inventory I prepared and put on this website have no place for the attorney to sign.

Still, those of us who practice in Travis County need to comply with Judge Herman's requirements. Also, Judge Herman's practices often influence the practice in other Texas courts. Therefore, I have added to the website an affidavit in lieu of inventory form with a place for the attorney to sign and an affidavit of compliance with Section 128A form with a place for the attorney to sign. Adding the attorney's signature is easy, so that will be my practice from now on.