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 know how a power of attorney works after the principal’s death.
Several types of power of attorney are 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. At the same time, 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.
Suppose your mother appointed you as her agent when she was alive. In that case, 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 to power of attorney, find out who can override 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 doesn’t extend beyond the moment the principal passes away.
A standard power of attorney expires when the principal becomes mentally incapacitated or dies.
If the principal had a will
Once a person dies, they no longer have legal ownership over the property. Therefore, a POA agent can’t manage a property the principal no longer owns.
Suppose a relative has died and left a last will and testament. In that case, 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.
Related: How to Avoid Probate: 5 Ways to Transfer Assets After Death
Executor of will vs. power of attorney agent
The principal appoints an executor of a will and a power of attorney agent to manage their affairs.
An executor’s responsibilities come into effect after the principal’s death. In contrast, 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 until 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 critical difference between a trust and 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.
Related: Trust vs. Will: Do I Need a Will or Trust?
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.
Suppose the principal wants you to retain authority over their property after death. In that case, they must name you executor in their will.
