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Trusts & the Unauthorized Practice of Law

Recently, the Missouri Court of Appeals in the Eastern District addressed a question that has persisted with trust litigation practitioners in Missouri. Is a non-attorney trustee authorized to represent a trust in litigation? Would that be considered the unauthorized practice of law? It appears that the answer is “yes.”

Missouri limits the practice of law to “duly licensed” attorneys. Strong v. Gilster Mary Lee Corp., 23 S.W.3d 234, 238 (Mo. Ct. App. 2000). What constitutes the “practice of law” is not always clear, but the act of appearing in court to assert or defend claims on behalf of another lies at the heart of the practice of law. The typical result of the unauthorized practice of law is to dismiss the case or treat the particular actions taken by the representative as a nullity. Schlenberg v. Bitzmart, Inc., 178 S.W.3d 543, 544 (Mo. Ct. App. 2005).

The nature of a trust is that the trustee is the legal owner of the trust property in which the beneficiaries of equitable ownership. Thompson v. Koenen, 396 S.W.3d 429, 435 (Mo. Ct. App. 2013). Unlike with a corporation, a trust is not considered a separate legal entity. Ttrustees act on behalf of their trusts and are sued by their representatives. A trustee under Missouri law further has a duty to administer the trust in good faith and in the interests of the beneficiaries. Section 456.8-801, RSMo. As such, a trustee does not represent his/her/its interest alone, but also the interests of others in the beneficiaries when in a court proceeding. Accordingly, because a trustee is acting on behalf of others when in court, a law license/attorney is necessary.

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