Ask the Probate Judge—Unauthorized Practice of Law
Rudd, appeared August 19, 2004, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: A recent article in the Albuquerque Journal stated that the ONLY kind of revocable living trust accepted by the courts in New Mexico is one that is prepared/submitted by an attorney. Is this true? Does the court accept or reject any revocable living trust prepared by a paralegal? G.A., Albuquerque
Q: I established a living trust that was executed by someone who is not a lawyer. Then I heard another lawyer state that living trusts should only be executed by a lawyer. I am concerned as to whether or not my revocable living trust is legal. Does a living trust have to be executed by a lawyer to be legal? All appropriate documents have been notarized, and my property deed has been recorded with the county clerk. R.N., Albuquerque
These two questions raise interesting issues. A prior column addressed whether a private individual with no law training could write wills for others and whether a will prepared by such an individual would be legal.
This important topic merits further discussion, especially since I received two similar letters the same week.
It is a criminal violation in New Mexico for a non-lawyer to prepare a will, trust, or other legal document without an attorney's help. When a non-lawyer prepares legal documents for others without being supervised by an attorney licensed in New Mexico, it is called the "unauthorized practice of law." Anyone found guilty of this crime can be fined up to $500 or imprisoned up to six months, or both.
Individuals may prepare their own wills and living trusts, even though doing so is usually not wise. One must understand not only how to draft legal documents, but also community property, tax, estate planning, and other laws.
It is possible that an attorney is supervising the non-lawyers in the above questions. You might call the organizations that prepared the trusts and inquire. In the second question, it is good that the trust document is notarized. It is also proper to record the new deed with the county clerk.
A court should not be involved in a trust if all of the trustor's property was properly transferred into the trust. Usually a court does not have the opportunity to "accept or reject any revocable living trust," no matter who prepared it. Only if a dispute arises or some property was omitted from the trust should court intervention be necessary.
If a paralegal or other non-lawyer prepared a trust without the supervision of an attorney licensed in New Mexico, the trust might be valid if it were properly drafted and notarized. But any non-lawyer who prepares a trust for another person is still violating state law in doing so.
You both might want to hire a reputable attorney licensed in New Mexico to review your trust documents. If the documents are deficient, however, the attorney may recommend that you start over again from scratch.
If you have encountered a paralegal or other non-lawyer who is practicing law without a license and drafting legal documents without the supervision of an attorney, I urge you to report that person to the Unauthorized Practice of Law Committee of the State Bar, P.O. Box 92860, Albuquerque, NM 87199-2860, 505-797-6068.
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved