The fact that you held power of attorney for someone during their lifetime has no bearing on whether or not probate is required after they die. Whether or not probate is required depends on what the deceased owned when they died.
What is power of attorney?
Giving someone power of attorney means appointing another person to handle their affairs and make decisions on their behalf. This is done through a legal instrument. The designated individual is known as an attorney.
There are various sorts of power of attorney, but they all have two characteristics in common:
- The power of attorney document must be made by the person who’s appointing the attorney while they are fully able to understand it
- The power of attorney ends when the individual dies (or when specified in the document)
Probate and Power of Attorney
Power of attorney and probate are not the same thing. This can be perplexing, and we frequently hear people claim that they don’t need probate because they had power of attorney for the person who died. However, this is not how it works.
Consider this: power of attorney deals with events that occur while your loved one is alive, and it has no effect after they die. So, while you may be accountable for your loved one’s affairs during their lifetime, this responsibility ends when they die.
Responsibility for the estate goes to the executors appointed in the will after their death. If there is no valid will, the estate is distributed to the deceased’s closest living relative (known as the administrator for probate purposes).
The executor or administrator must demonstrate legal authorization to handle the estate. They must go through the probate process to do so. This ensures that the deceased person’s estate is administered by the correct person.
Executor And Power of Attorney
The individual who held power of attorney may be the executor or administrator of the estate. This is fairly typical, as the person trusted to handle someone’s business during their lifetime is frequently the one trusted to do the same after their death.
Even if you had power of attorney and are now the executor or administrator, probate may still be required. This is because your loved one has died and you need legal permission to deal with their estate. It makes no difference if you previously had authority to make decisions on their behalf; it’s not the same thing.
As a result, the fact that you held power of attorney has no bearing on whether or not probate is required. Instead, this will be determined by the assets owned by the deceased and whether these assets were held in their single name.
If a loved one has died and you’re unsure whether or not probate is required, our probate advisors can help.
