Can a county judge furnish probate and final-settlement forms to personal representatives, and can his clerks fill them out?

Plain-English summary

The committee answered four questions about a county judge who is a lawyer and the handling of probate paperwork for personal representatives. It concluded that furnishing blank forms is permissible, but preparing the documents on those forms is not.

On the two questions about furnishing forms (a printed form petition for probate and appointment, and a format for final settlements), the committee answered yes, treating these as questions about the court's rule-making power rather than legal ethics. It noted that prescribing practice forms appears to be within a court's rule-making powers to the extent the court has such powers, as the Kentucky Court of Appeals does with its official forms, and that whether a county court has rule-making power is a question of law it did not need to resolve to find no ethics issue in merely furnishing forms.

On the two questions about preparing the documents, the committee answered no. Preparing petitions for probate and appointment, final settlements, and other documents invoking the probate court's jurisdiction is the practice of law (Frazee v. Citizens Fidelity; Winkenhofer v. Chaney; Carter v. Brien). The availability of court-prescribed forms makes no difference because using and adapting forms requires professional legal judgment, illustrated by a final settlement, which must reveal computation of distributive shares and may involve allocation of debts, expenses, and federal estate tax. If lay clerks or secretaries prepare such documents they engage in the unauthorized practice of law, and if the county judge does so with their knowledge and acquiescence he aids it in violation of RCA 3.470 and DR 3-101(A). The committee added that, under In re Kenton County Bar Assn and KRS 30.150 (no county judge shall prepare pleadings to be filed in the county court of his own county), the judge who prepares such documents himself, or supervises clerks who do, is himself engaged in the unauthorized practice of law.

Currency note

This opinion was issued in 1976 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a county judge furnish blank probate forms and a settlement format to personal representatives?

A: Yes. The committee treated furnishing forms as a question of the court's rule-making power, not legal ethics, and found no ethics issue in it.

Q: Can the county judge or his clerks fill out the probate petitions and final settlements?

A: No. The committee held that preparing those documents is the practice of law, and the availability of forms does not change that because using and adapting forms requires professional legal judgment.

Q: What rules does clerk preparation violate?

A: The committee held that lay clerks preparing such documents engage in the unauthorized practice of law, and a county judge who knowingly permits it (or does it himself) violates RCA 3.470 and DR 3-101(A), with KRS 30.150 barring a county judge from preparing pleadings for his own county court.

Background and rules framework

The opinion applied DR 3-101(A) of the former Code of Professional Responsibility (aiding the unauthorized practice of law) and Kentucky's RCA 3.470, together with KRS 30.150 and case law defining the preparation of probate documents as the practice of law (Frazee v. Citizens Fidelity; Winkenhofer v. Chaney; Carter v. Brien; In re Kenton County Bar Assn). The modern analog is Model Rule 5.5 (unauthorized practice of law and assisting it).

Citations and references

Rules of Professional Conduct:

• DR 3-101(A) (aiding unauthorized practice of law); RCA 3.470; modern analog Model Rule 5.5

Statutes:

• KRS 30.150 (county judge may not prepare pleadings for his own county court)

Cases:

• Frazee v. Citizens Fidelity, 393 S.W.2d 778 (Ky. 1965), preparing probate documents is the practice of law
• Winkenhofer v. Chaney, 369 S.W.2d 113 (Ky. 1963)
• Carter v. Brien, 309 S.W.2d 748 (Ky. 1956)
• In re Kenton County Bar Assn, 236 S.W.2d 906 (Ky. 1951), a judge may not practice law in a court over which he regularly presides

See also

• KBA Ethics Op. E-133: County Judge Pro Tem Defending Criminal Cases
• KBA Ethics Op. E-128: County Attorney, Police Judge Office

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-135.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-135
Issued: January 1976

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org ), before relying on this opinion.

Question 1:

May a county judge who is a lawyer furnish to personal representatives in decedents' estates printed form petitions for probate of wills and appointment of personal representatives?

Answer 1:

Yes.

Question 2:

May the county judge or his lay clerks or secretaries prepare or assist in preparing petitions for personal representatives on such forms?

Answer 2:

No.

Question 3:

May a county judge who is a lawyer furnish to personal representatives a format for final settlements?

Answer 3:

Yes.

Question 4:

May a county judge, his clerks or secretaries, prepare or assist in preparing final settlements for personal representatives?

Answer 4:

No.

References:

KRS 30.150, RCA 3.470; DR 3-101(A); Frazee v. Citizens Fidelity, 393 S.W.2d 778 (Ky. 1965); Winkenhofer v. Chaney, 369 S.W.2d 113 (Ky. 1963); Carter v. Brien, 309 S.W.2d 748 (Ky. 1956); In re Kenton County Bar Assn, 236 S.W.2d 906 (Ky. 1951).

OPINION

The prescription of practice forms seems to be within a court's rule-making powers, to the extent a court has such powers. Certainly the Kentucky Court of Appeals thinks so, as evidenced by their prescription of official forms in the Rules of Civil Procedure and Rules of Criminal Procedure. Whether a Kentucky county court has rule making powers is a fundamental question of law. We do not believe that Questions 1 and 3 present any legal ethics issues.

The preparation of petitions for probate and appointment of personal representatives, final settlements, and other documents invoking the jurisdiction of the probate court, is the practice of law, Frazee v. Citizens Fidelity, 393 S.W.2d 778 (Ky. 1965); Winkenhofer v. Chaney, 369 S.W.2d 113 (Ky. 1963); Carter v. Brien, 309 S.W.2d 748 (Ky. 1956).

The availability of court-prescribed forms makes no difference. The use and adaptation of forms in particular cases require professional legal judgment. This is well illustrated by preparation of a final settlement. An adequate settlement is more than a mere list of receipts and disbursements. For example, it must reveal computation of distributive shares, which may involve allocation of debts, expenses, and federal estate tax. Even if a settlement is little more than a list of receipts and disbursements, the listing of a receipt implies that the item is an asset of the estate subject to probate administration, or income from such an asset. The listing of a disbursement implies that the item was properly paid from assets of the estate.

If the county judge's lay clerks and secretaries are preparing petitions for probate and appointment, final settlements, and other documents invoking the jurisdiction of the probate court, they are engaged in the unauthorized practice of law. If they are doing so with the knowledge and acquiescence of the county judge, he is knowingly aiding, assisting, and abetting the unauthorized practice of law in violation of RCA 3.470 and DR 3-101(A).

In general, a judge may not practice law in a court over which he regularly presides, In re Kenton County Bar Assn, 236 S.W.2d 906 (Ky. 1951). KRS 30.150 provides: "No county judge shall prepare any pleadings to be filed or used in the county court of his own county " If the county judge himself prepares petitions for probate and appointment, final settlements, and other documents invoking the jurisdiction of the probate court, or if his clerks and secretaries prepare such documents under his supervision, he is himself engaged in the unauthorized (not to say illegal) practice of law in violation of RCA 3.470 and DR 3-101(A).

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.