Can You Get Power of Attorney After Death?

Death invalidates power of attorney, but the law provides other options

POWER OF ATTORNEY
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You can't get a power of attorney to act for someone after they have died, and an existing power of attorney becomes invalid upon the death of the principal—the individual who gave you the right to take certain actions on their behalf.

Someone is still going to have to take care of their affairs after their death, but it won't necessarily be the agent appointed in a power of attorney during their lifetime.

Does Power of Attorney Last After Death?

Perhaps your parent recently passed and you were named as their agent in a ​power of attorney (POA). You're the individual they wanted to take care of certain personal business matters for them. The POA gave you the authority to act on their behalf in a number of financial situations, such as buying or selling a property for them or maybe just paying their bills.

You might think that you should continue paying those bills and settling their accounts after their death, but you should not and you can't—at least not unless you've also been named as the executor of their estate in their will, or the court appoints you as the administrator of their estate if they didn't leave a will.

Who Has Power of Attorney When There's a Will?

People can no longer legally own property after they're deceased, so probate is required to transfer their property to living heirs. Your parent's will must, therefore, be filed with the probate court shortly after their death if they held a bank account or any other property in their sole name.

This begins the probate process to legally distribute their property to their living beneficiaries. The executor named in their will is responsible for doing so and guiding the estate through the probate process.

Who Has Power of Attorney When There's No Will?

The deceased's property must still pass through probate to accomplish the transfer of ownership, even if they didn't leave a will. The major difference is that their property will pass according to state law rather than according to their wishes as explained in a will.

The court will appoint an administrator to settle the estate if the deceased didn't leave a will. You can apply to the court to be appointed as administrator, and the court is likely to agree if the deceased left no surviving spouse, or if their surviving spouse and their other children agree that you should do the job.

Estate Executor vs. Power of Attorney Agent

In either case, with or without a will, the probate court will grant the authority to act on a deceased person's estate to an individual who might or might not also be the agent under the power of attorney. The two roles are divided by the event of the death. In some cases, however, the agent in the POA might also be named as executor or administrator of the estate.

You would continue to have authority over the deceased's bank accounts and other assets if you're also named as the executor or administrator, at least until ownership can be transferred to living individuals.

What Does Someone With Power of Attorney Do After a Death?

The POA you hold for your parent is useless and serves no purpose after their death. The deceased person no longer owns anything for you to handle for them because they can't legally hold money or property.

The POA might authorize you to make financial transactions for them, but they technically no longer owns the property or the money over which the POA placed you in charge. Their estate owns it, so only the executor or the administrator of their estate can deal with it during the probate process.

As a practical matter, most financial institutions immediately freeze the accounts of deceased individuals when they learn of their deaths. The freeze remains in place until they're contacted by the executor or administrator of the estate. If you were to attempt to use the POA, it would be denied.

Some very small estates don't require probate, or your parent might have used a living trust as an estate-planning method rather than a last will and testament so probate would not be required. A successor trustee would take over after the deceased's death if they left a revocable living trust, but these exceptions are limited.

The POA becomes invalid in both cases anyway.

Power of Attorney and Rights of Survivorship

It can also change things if your parent's bank account or other property is not included in their probate estate for some reason. Probate is only necessary for assets that your parent owns in their sole nameThese assets require a legal process to transfer to living beneficiaries.

But if your parent listed you as co-owner of their bank account or even on the deed to their home, giving you "rights of survivorship," the account or the property passes automatically and directly to you at their death. Probate of these assets would not be necessary.

You would retain control over these assets, but you would no longer be responsible for paying your parent's debts from that money because probate also handles their final bills. You would be responsible for paying debts on which you co-signed with the deceased, just as you were during their lifetime.

Frequently Asked Questions (FAQs)

Is durable financial power of attorney still valid after a death?

Both durable and nondurable powers of attorney expire after the death of the principal. Durable power of attorney, however, lasts if the person you are authorized to represent is alive but becomes incapacitated. For example, a parent diagnosed with dementia may assign durable power of attorney to an adult child.

What rights does someone with power of attorney have after a death?

Even if you had power of attorney for someone while they were alive, your rights after their death only extend as far as they have outlined in their will. If you disagree with the decisions the executor makes with their estate, you may have standing to challenge them in court.

Article Sources

  1. Legal Assistance for Military Personnel. "Powers of Attorney."

  2. Internal Revenue Service. "Deceased Taxpayers – Understanding the General Duties as an Estate Administrator."

  3. South Carolina Legislature. "Title 62 - South Carolina Probate Code."

  4. Wayne County Probate and Juvenile Court. "Full Administration With and Without a Will."

  5. Michigan Legal Help. "An Overview of Informal Probate."

  6. Cornetet, Meyer, Rush and Stapleton Attorneys at Law. "Probate Q & A."

  7. California Courts. "Simplified Procedures to Transfer an Estate."

  8. AARP. "10 Things You Should Know About Living Trusts."

  9. Florida Bar. "Consumer Pamphlet: Probate in Florida."

  10. Cornell Law School Legal Information Institute. "Right of Survivorship."