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Power of Attorney
What happens to Power of Attorney when someone dies?

What happens to Power of Attorney when someone dies?

Full question:

My brother has Power of Attorney for my Mom who just passed away. It would be much easier to settle everything If I had it because he lives so far away. How can he relinquish it and give it to me?

Category: Power of Attorney
Date: 04/07/2025
State: California

Answer:

A power of attorney is no longer valid when the principal (the person who granted it) dies. After death, the estate must go through probate, which is the legal process for administering the estate of a deceased person. This process includes proving the validity of any will and distributing the estate according to the will's terms or state intestacy laws if there is no will.

The first step is to file the will with the clerk of the appropriate court in the county where your mother lived, along with a petition to have the court approve the will and appoint the executor named in it. If there is no executor named, the court will appoint an administrator to manage the estate.

If the estate is valued at less than one hundred thousand dollars, it may qualify for a small estate administration, which is typically faster than the formal probate process.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

Can a power of attorney make themselves beneficiary?

A power of attorney (POA) cannot make themselves a beneficiary of the principal's estate unless explicitly authorized by the principal. The POA acts in the best interest of the principal and must follow their wishes as outlined in any estate planning documents. If the principal has not designated the POA as a beneficiary, they cannot unilaterally change that designation.

What three decisions cannot be made by a legal power of attorney?

A legal power of attorney cannot make decisions regarding the principal's healthcare if the principal is incapacitated (unless specified), cannot change the principal's will, and cannot make decisions that would benefit themselves at the expense of the principal. The POA must act in the principal's best interest and within the authority granted.

What are the disadvantages of being a power of attorney?

Being a power of attorney can come with significant responsibilities and potential liabilities. The POA must act in the principal's best interest, which can be stressful. If the POA mismanages the principal's affairs, they could face legal consequences. Additionally, the role may require time and effort to handle financial or medical decisions, which can be burdensome.

What does power of attorney give you authority over?

A power of attorney gives you the authority to make decisions on behalf of the principal in specified areas, such as financial matters, legal affairs, and sometimes healthcare decisions. The extent of this authority depends on the type of POA and the specific powers granted by the principal. It's essential to understand the limitations and responsibilities involved.

What is a POA not allowed to do?

A power of attorney is not allowed to make decisions that are outside the authority granted by the principal, such as changing a will, making personal decisions about the principal's healthcare without consent, or using the principal's assets for personal gain. The POA must always act in the best interest of the principal and adhere to their wishes.

What is more powerful, a will or power of attorney?

A will and a power of attorney serve different purposes. A will dictates how a person's assets are distributed after death, while a power of attorney allows someone to make decisions for a person while they are alive. Therefore, neither is 'more powerful' than the other; they are complementary legal tools used in estate planning.