A power of attorney is a legal form that allows the person creating it (the “principal”) to appoint a trusted individual (the “agent”) to act on their behalf. For example, an agent can sign contracts, cash checks, pay bills, and manage investments for the principal.
If you’ve ever been given power of attorney (POA), you likely understand your duties and what the role entails. However, many people don’t understand how a power of attorney works after the death of the principal.
There are several types of power of attorney available — each serves a unique purpose, and grants agents different levels of authority.
Below, we explain what happens to a power of attorney after death, and who has the right to manage someone’s affairs after they’re gone.
How to get power of attorney after death
Unfortunately, you can’t get power of attorney and act on someone’s behalf after they’ve died.
According to the law, a power of attorney must be executed while the principal is alive and of sound mind — acting of their own free will.
Does a power of attorney end at death?
A valid power of attorney expires once the principal dies. Therefore, using your authority as power of attorney after their death is not permitted by law.
If your mother appointed you as her agent when she was alive, you may have been legally permitted to pay her bills, manage her investments, file her taxes, sell her real estate properties, and more. However, those powers are no longer legally valid after she passes away.
The only way you can continue to manage her affairs is if you’ve also been appointed executor of her estate in her will, or if a court appoints you estate administrator.
If you’re concerned that an agent is abusing their right as power of attorney, find out who can override a power of attorney.
Does a durable power of attorney expire after death?
Yes, a durable power of attorney also expires upon the principal’s death.
A durable power of attorney allows the agent to continue acting on the principal’s behalf even if they become mentally incompetent and unable to communicate, yet it still doesn’t extend beyond the moment the principal passes away.
In comparison, a standard power of attorney expires when either the principal becomes mentally incapacitated or dies.
If the principal had a will
Once a person dies, they no longer have legal ownership over property. Therefore, a POA agent can’t manage property the principal no longer owns.
If a relative of yours has died and left a last will and testament, however, you may still have a say in managing the principal’s affairs if you’ve also been named executor of their will.
The executor of a will is responsible for ensuring the distribution of assets, managing the deceased’s financial affairs, and directing the estate through the probate process.
Executor of will vs power of attorney agent
Both an executor of a will and a power of attorney agent are appointed by the principal to manage their affairs.
An executor’s responsibilities come into effect after the death of the principal, whereas a power of attorney agent’s rights are only valid before the principal dies.
You can be named both power of attorney and executor of someone’s will. In this case, you’ll continue to manage some of the principal’s affairs up until the point that they’re transferred to the heirs listed in their will.
If the principal didn’t have a will
If the principal didn’t have a will, their assets still need to pass through the probate process.
In probate, the court will appoint an administrator to oversee the distribution of the principal’s assets and manage their outstanding financial affairs — similar to the executor of a will.
A key difference between a trust vs will is that a trust doesn’t need to go through the probate process. There are many types of trusts for you to choose from.
Power of attorney after death
When you sign as power of attorney, you’re legally authorized to manage the principal’s affairs, but only while they are alive.
If the principal wants you to retain authority over their property after their death, they must name you executor in their will.
