While California trustees hope for smooth sailing, they must navigate waters that can be choppy depending on the assets, trust instruments and personalities involved.  As fiduciaries, trustees must honor the trustors’ intent as expressed in the trust instruments.  Sometimes the language is unclear and the trustee needs instruction from a court as to how to proceed.

If they are not already working with an attorney, most trustees will (and should) seek guidance from counsel when uncertain about what to do.  An attorney, generally at the expense of the trust, can help the trustee decide whether to file a petition for instructions, draft the necessary paperwork, serve it on parties entitled to notice, and then appear in the probate department of the court on behalf of the trustee.  Some DIY-minded trustees, however, may be inclined to proceed without paying an attorney.  Business & Professions Code section 6125 provides that a person can’t practice law unless he/she is an active member of the State Bar of California.  When can a trustee represent himself or herself in court without engaging in unauthorized practice of law?

Earlier this month, the Court of Appeal held in Donkin v. Donkin, Jr. (2020) ___ Cal.App.5th ___ that individuals acting as trustees may represent themselves when seeking instructions from a California court.  Yet, like an inexperienced sailor who attempts a solo ocean journey, a trustee who proceeds without counsel risks serious missteps such that self-representation may end up being far more costly in the long run.

Trustees Can Represent Themselves, Depending on the Context

Rodney Donkin, Sr. and his wife Mary, executed a trust in 1988, which made their children – Rodney, Jr., Lisa, and Annemarie – primary beneficiaries.  Rodney Jr. and his wife Vicki were named as co-successor trustees.  Rodney, Sr. died in 2002.  Mary then died in 2005, shortly after amending the trust document.

Litigation thereafter ensued between the trustees and beneficiaries.  Rodney, Jr. and Vicki eventually filed a petition in 2014 seeking, among other things, instructions from the court concerning the interpretation of the trust document, as amended, so they would know how to properly administer the trust.  During this time, Rodney, Jr. and Vicki represented themselves as co-trustees.  The Los Angeles County Superior Court issued an order in 2018 on a variety of issues, which Rodney, Jr. and Vicki appealed.

Lisa and Annemarie raised one issue that potentially had grim ramifications for the trustees: whether Rodney Jr. and Vicki’s self-representation constituted the unauthorized practice of law.  While the Court of Appeal ruled in favor of Lisa and Annemarie on some issues, it rejected their unauthorized practice of law argument.

The Court of Appeal acknowledged Ziegler v. Nickel (1998) 64 Cal.App.4th 545, which held that “[a] nonattorney trustee who represents the trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law.”  Ziegler’s analysis hinged on the fact that the trustee was representing and affecting the interests of beneficiaries.  The Donkin court found Ziegler inapplicable because that case involved civil litigation by a trustee against a third party, i.e., a mobile home park, as opposed to a trust administration dispute under the Probate Code.  It also reasoned that Rodney, Jr. and Vicki were not representing the beneficiaries’ interests, but instead were seeking instructions to effectuate the intent of the trustors, Rodney, Sr. and Mary.

The Court of Appeal found support for its position in Finkbeiner v. Gavid (2006) 136 Cal.App.4th 1417, where the court found that a trustee was not engaged in the unauthorized practice of law by representing herself in a petition to modify and terminate the trust.  As the Finkbeiner court observed, the trustee had a duty to notify the court if she felt maintaining an ineffective trust was wasteful to the trust estate, and her petition was merely fulfilling her duty as trustee.

Just Because You Can Sail Solo Does Not Mean You Should

Trustees should consult with counsel familiar with California trust law before proceeding with any sort of court petition.  While individual trustees (as opposed to corporate trustees such as banks) might be entitled to seek instructions from a California court by filing a petition in pro per, it may be imprudent and counterproductive for them to do so.  A lawyer can advise a trustee as to whether and what sort of petition is required, and then guide the trustee in the preparation, filing and service of the petition.

Donkin itself serves as a cautionary tale for trustees contemplating self-representation.  The Court of Appeal observed that Rodney, Jr. and Vicki “wasted both the court’s and [b]eneficiaries’ resources and time trying to relitigate issues already decided by the California Supreme Court in this case.”  While the court therefore permitted Rodney, Jr. and Vicki to represent themselves, it suggested that they should not have done so because, had they had more experienced counsel at the helm, an unnecessary storm ahead could have been circumnavigated.