Experiencing the loss of a loved one is emotionally draining, and it requires time to come to terms with it. Amidst the grief, you must also deal with legal matters on deciding how the deceased’s assets and estates will be managed. If you were granted the Power of Attorney, you could wonder about your role after your loved one's death.
Many people are unaware of how a Power of Attorney works after the principal dies. If you are a loved one of the deceased or the appointed attorney, you already understand that POA grants someone the authority to make vital decisions on behalf of the principal. Whether it continues after death and to what extent is the challenge that most people grapple with after the funeral.
This comprehensive article will help you understand the legal position of a power of attorney and who oversees the principal's estate after they pass away. Afterward, you can plan for a seamless transition and satisfactory execution of your loved one's wishes.
Who Has Power of Attorney After Death If There Is No Will?
If there is no will, the courts use the laws that govern intestate succession to decide who will handle the deceased person's affairs and distribute their assets. This individual is called the administrator. A power of attorney becomes invalid at this point, and the attorney does not have the ability to choose who will carry out this responsibility.
To fill this role, the court uses a specific relational order to choose the administrator, but as the attorney-in-fact, you can also apply for the role if you believe the surviving spouse and children will agree to it. The order used to choose the administrator is as follows:
- Surviving spouse
- Adult children
- Parents
- Siblings
- Other relatives
- Other parties with legal interest
- Public administrator
If the deceased did not have a Last Will and Testament, the estate division would be conducted according to state laws instead of their wishes.
Is Power Of Attorney Valid After Death?
No, Power of Attorney is invalid after the person who granted you the right to make decisions on their behalf dies. The POA often gives the agent or attorney-in-fact the authority to make crucial decisions while alive. Once the POA creator dies, the document becomes null and void.
However, if the principal wants you, as the agent, to manage the estate after their death, they should create a Last Will and Testament that includes your name as the executor. If they do not, you will wait for the court to decide if you can become the administrator.
Quote Block: If you are named the executor in a Last Will and Testament, you must apply with the court to give you a Letter of Testamentary permitting you to act as an executor upon the principal's death.
How Long Is a Power Of Attorney Valid After Death?
Unfortunately, a Power of Attorney becomes invalid once the principal passes away. Immediately when the POA creator dies, the POA is no longer a legal authority, and you have no power to make any decisions regarding the principal's affairs. The following POAs become invalid after a person's demise:
- General: Grants broad powers
- Limited: Grants specific powers
- Durable: Grants powers when the principal becomes mentally incapacitated
- Springing: Grants powers when a specific event or condition occurs
- Medical/Healthcare: Grants powers to make healthcare decisions
After your loved one dies, the task of managing their affairs transitions to the appointed administrator or named executor in the Will.
How to Access the Deceased's Assets
Once you learn you no longer have the authority to make decisions on behalf of the principal, your immediate concern may be how you can legally access your loved one's assets. The following is the general process you will go through:
- The court appoints the administrator, or you identify the executor from the Last Will and Testament.
- Obtain a copy of the death certificate to help process various administrative and legal matters.
- Gather your loved one's documents, such as property deeds, financial records, insurance policies, bank statements, and investment accounts.
- File for probate if the need arises. This process may ensure the parties involved receive exactly what the will states or according to interstate laws.
- Inform and provide evidence of death to the relevant parties, such as financial institutions.
- Settle pending debts and taxes before distributing the assets.
- Distribute the assets according to the will's directive or the administrator's guidance.
- Transfer ownership by acquiring a deed transfer or retitling financial accounts.
- Complete administrative and legal tasks and paperwork to enforce the distribution and transfer.
In some situations, beneficiaries may seek to contest the Will or the above process and initiate legal proceedings. The courts often accept the request, but the burden of proof lies with the beneficiary challenging the Last Will and Testament or the intestate state laws.
Executor of a Will vs. Agent
More often than not, the principal appoints both the executor of the will and the agent. The main difference between the two individuals is that the executor's role starts after the demise of the principal, while the agent's role starts and lasts before the principal's death. The table below outlines other differences.
| Executor of Will | Agent (Attorney-In-Fact) | |
|---|---|---|
| Role | Overseas distribution of the deceased estate as per the will | Acts on behalf of the principal as specified in the POA document |
| Document | The testator appoints them in the Last Will and Testament | The grantor appoints them in a POA document |
| Authority | Gains authority from the Will and court | Gains authority specified in the POA document |
| Main focus | Estate administration and distribution | Tasks listed and based on the powers given |
These points emphasize the importance of having your estate planning documents in order before any unexpected deaths occur. Use this handy checklist for planning your estate to make sure you’re prepared.
Helpful Resources:
Experiencing the loss of a loved one is emotionally draining, and it requires time to come to terms with it. Amidst the grief, you must also deal with legal matters on deciding how the deceased’s assets and estates will be managed. If you were granted the Power of Attorney, you could wonder about your role after your loved one's death.
Many people are unaware of how a Power of Attorney works after the principal dies. If you are a loved one of the deceased or the appointed attorney, you already understand that POA grants someone the authority to make vital decisions on behalf of the principal. Whether it continues after death and to what extent is the challenge that most people grapple with after the funeral.
This comprehensive article will help you understand the legal position of a power of attorney and who oversees the principal's estate after they pass away. Afterward, you can plan for a seamless transition and satisfactory execution of your loved one's wishes.
Who Has Power of Attorney After Death If There Is No Will?
If there is no will, the courts use the laws that govern intestate succession to decide who will handle the deceased person's affairs and distribute their assets. This individual is called the administrator. A power of attorney becomes invalid at this point, and the attorney does not have the ability to choose who will carry out this responsibility.
To fill this role, the court uses a specific relational order to choose the administrator, but as the attorney-in-fact, you can also apply for the role if you believe the surviving spouse and children will agree to it. The order used to choose the administrator is as follows:
- Surviving spouse
- Adult children
- Parents
- Siblings
- Other relatives
- Other parties with legal interest
- Public administrator
If the deceased did not have a Last Will and Testament, the estate division would be conducted according to state laws instead of their wishes.
Is Power Of Attorney Valid After Death?
No, Power of Attorney is invalid after the person who granted you the right to make decisions on their behalf dies. The POA often gives the agent or attorney-in-fact the authority to make crucial decisions while alive. Once the POA creator dies, the document becomes null and void.
However, if the principal wants you, as the agent, to manage the estate after their death, they should create a Last Will and Testament that includes your name as the executor. If they do not, you will wait for the court to decide if you can become the administrator.
Quote Block: If you are named the executor in a Last Will and Testament, you must apply with the court to give you a Letter of Testamentary permitting you to act as an executor upon the principal's death.
How Long Is a Power Of Attorney Valid After Death?
Unfortunately, a Power of Attorney becomes invalid once the principal passes away. Immediately when the POA creator dies, the POA is no longer a legal authority, and you have no power to make any decisions regarding the principal's affairs. The following POAs become invalid after a person's demise:
- General: Grants broad powers
- Limited: Grants specific powers
- Durable: Grants powers when the principal becomes mentally incapacitated
- Springing: Grants powers when a specific event or condition occurs
- Medical/Healthcare: Grants powers to make healthcare decisions
After your loved one dies, the task of managing their affairs transitions to the appointed administrator or named executor in the Will.
How to Access the Deceased's Assets
Once you learn you no longer have the authority to make decisions on behalf of the principal, your immediate concern may be how you can legally access your loved one's assets. The following is the general process you will go through:
- The court appoints the administrator, or you identify the executor from the Last Will and Testament.
- Obtain a copy of the death certificate to help process various administrative and legal matters.
- Gather your loved one's documents, such as property deeds, financial records, insurance policies, bank statements, and investment accounts.
- File for probate if the need arises. This process may ensure the parties involved receive exactly what the will states or according to interstate laws.
- Inform and provide evidence of death to the relevant parties, such as financial institutions.
- Settle pending debts and taxes before distributing the assets.
- Distribute the assets according to the will's directive or the administrator's guidance.
- Transfer ownership by acquiring a deed transfer or retitling financial accounts.
- Complete administrative and legal tasks and paperwork to enforce the distribution and transfer.
In some situations, beneficiaries may seek to contest the Will or the above process and initiate legal proceedings. The courts often accept the request, but the burden of proof lies with the beneficiary challenging the Last Will and Testament or the intestate state laws.
Executor of a Will vs. Agent
More often than not, the principal appoints both the executor of the will and the agent. The main difference between the two individuals is that the executor's role starts after the demise of the principal, while the agent's role starts and lasts before the principal's death. The table below outlines other differences.
| Executor of Will | Agent (Attorney-In-Fact) | |
|---|---|---|
| Role | Overseas distribution of the deceased estate as per the will | Acts on behalf of the principal as specified in the POA document |
| Document | The testator appoints them in the Last Will and Testament | The grantor appoints them in a POA document |
| Authority | Gains authority from the Will and court | Gains authority specified in the POA document |
| Main focus | Estate administration and distribution | Tasks listed and based on the powers given |
These points emphasize the importance of having your estate planning documents in order before any unexpected deaths occur. Use this handy checklist for planning your estate to make sure you’re prepared.
Helpful Resources:
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