Who Can Represent a Trust in Court?

The trustee, not the trust, is the party

In most states, a trust is not a separate legal entity, so it does not sue or get sued in its own name. Instead, the trustee sues or is sued in a representative capacity, for example “Jane Doe, as trustee of the Doe Family Trust.” In California, the court in Portico Management Group, LLC v. Harrison, 202 Cal.App.4th 464 (2011), held that a judgment against a trust, rather than its trustee, could not be enforced. Name the right party.

Why a non-lawyer trustee usually needs a lawyer

Anyone may represent themselves in court. Federal law, 28 U.S.C. § 1654, lets parties “plead and conduct their own cases personally.” However, a trustee acts for the beneficiaries, not only for themselves. Representing other people’s interests in court is practicing law, so a non-lawyer trustee generally must hire an attorney.

California courts applied that rule in Ziegler v. Nickel, 64 Cal.App.4th 545 (1998). Federal courts agree. For example, in C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th Cir. 1987), the Ninth Circuit held that a non-attorney trustee could not represent a trust.

The Aulisio exception

In Aulisio v. Bancroft, 230 Cal.App.4th 1516 (2014), a California Court of Appeal allowed a trustee to appear without a lawyer. There, the trustee was the sole settlor, the sole trustee and the sole beneficiary of a revocable living trust. The court reasoned that the usual rule exists because a trustee represents others. When the trustee owes duties only to themselves, they are effectively representing their own interests.

The exception is narrow. If anyone else has a present interest, such as a co-trustee, another current beneficiary or a beneficiary of an irrevocable trust, the general rule usually applies. Later California cases, such as Donkin v. Donkin, 47 Cal.App.5th 469 (2020), have also allowed trustees to appear on their own in certain probate proceedings where they were not representing the beneficiaries’ interests. Other states may decide these questions differently.

How the merger doctrine fits in

A trust needs a separation between legal title, held by the trustee, and beneficial interest, held by the beneficiaries. When one person becomes the sole trustee and the sole beneficiary of all interests, the two merge and the trust generally ends. Uniform Trust Code § 402(a)(5) reflects this by requiring that the same person not be the sole trustee and sole beneficiary.

A typical revocable living trust avoids merger because it names other beneficiaries to take after the settlor dies, even when the settlor holds every role during life. That is why a trust like the one in Aulisio can be valid even though, for the purpose of who may appear in court, only one person’s interests are at stake.

Practical steps

• Check whether anyone besides you has a current or future interest in the trust.
• Name the trustee, in their capacity as trustee, as the party.
• Read your state’s rules on self-representation and unauthorized practice of law.
• If the trust has other beneficiaries, hire a licensed attorney. You can search our directory.

Trust law is state law. More than 30 states have adopted versions of the Uniform Trust Code, while others, including California, have their own trust codes. Read your state’s statute, and talk to a licensed estate planning attorney before you sign or fund a trust.

Researching who can represent a trust in court? in your state

To research who can represent a trust in court? for a real matter, start with the primary sources. For example, read the statute, the rule and the documents in your own file. Then look for recent appellate decisions from your state, because they control how local courts read the law. After that, compare what you found with the federal rules that may also apply. Our state procedures guide and the Research Center can help you find and check each source.

Sources and further reading

Official sources used on this page:

• law.cornell.edu
• calawyers.org
• sfbar.org

Related reading on Lawtopolis:

• How a Trust Is Created: Formation Requirements
• Revocable vs. Irrevocable Trusts
• Standing