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Who has power of attorney after death if there is no will?
In this article, you’ll learn about:
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After a person’s death, a power of attorney (POA) typically becomes invalid.
This is because it is a legal document that grants authority to act on behalf of the person while they are alive.
Let’s say there is no will or other estate planning documents.
The distribution of the deceased person’s assets and the handling of their estate generally follow the laws of intestacy.
These laws specify how the estate will be distributed among surviving heirs.
This typically includes close family members like spouses, children, parents, and siblings.
And the person responsible for overseeing the administration of the estate is usually referred to as the administrator if there is no will.
Obtaining the legal authority to manage and distribute the assets of a deceased person’s estate typically involves probate.
Here is a general overview of the process of how to get power of estate after death:
After a person’s death, there is no way to obtain or exercise a power of attorney because the document is no longer in effect.
However, let’s say you need to manage the affairs of the deceased person’s estate after their death.
You will need to begin the probate process.
If there is a will, it must be submitted to the probate court in the jurisdiction where the deceased person lived at the time of their death.
If there is no will, state laws determine the distribution of assets.
The probate court appoints an executor (if named in the will) or an administrator (if there is no will or no named executor) to oversee the estate’s administration.
Read More: How To Get Power Of Attorney Over A Parent
The authority granted by a power of attorney automatically terminates upon the death of the principal.
In other words, a power of attorney becomes invalid and has no legal effect after the principal’s death.
The “principal” is the maker of the POA.
This is the person who is allowing someone else to act on his or her behalf.
Here are other questions our clients ask us about getting a power of attorney when there is no will.
No, a power of attorney is not valid after death.
Let’s say the principal passes away.
The agent or attorney-in-fact no longer has the legal authority to make decisions or take actions on the principal’s behalf.
Read More: How To Get Power Of Attorney For Someone Who Is Incapacitated
Yes, the power of attorney ends at death.
A power of attorney becomes invalid and has no legal effect after the principal’s death.
Powers of attorney are designed to address matters during a person’s lifetime.
They are not intended to be used for estate administration after death.
The management and distribution of the deceased person’s assets and estate typically fall to the executor (if a will exists) or state laws of intestacy.
Yes, a power of attorney can sell property before death.
However, the POA document must give the agent (the person appointed in the POA) the power to do so.
The agent’s authority to sell property must be explicitly stated in the power of attorney document.
No, a surviving spouse does not need a power of attorney.
This is because POAs are invalid after death.
Additionally, spouses usually have joint ownership of assets, such as
This allows the surviving spouse to continue managing those assets without the need for a POA.
Now, let’s say the deceased spouse had separate, individual accounts or assets that were not jointly owned.
Then the surviving spouse would typically not have access to or control over those assets.
That is unless they are named as the beneficiary on those accounts or assets.
In those circumstances, the surviving spouse should take steps to start probating the deceased spouse’s estate.
That way, the surviving spouse can gain access to those separate assets.
Read More: Can You Have More Than One Power Of Attorney
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