Losing a loved one is a difficult experience, and it can be even more challenging when you are responsible for managing their estate. If you were the power of attorney for your loved one, you may be wondering if you need to go through probate.
The answer is: it depends.
Probate is a legal process that is required to distribute the assets of a deceased person. If your loved one had a will, the probate process will be used to carry out their wishes. If they did not have a will, the probate court will appoint an administrator to distribute the assets according to state law.
Even if you were the power of attorney for your loved one, you will still need to go through probate if:
- The value of their estate is above a certain threshold.
- They owned property in their own name.
- They had debts that need to be paid.
If your loved one’s estate is small and they did not own any property in their own name, you may be able to avoid probate. However, it is always best to consult with an attorney to be sure.
What is Power of Attorney?
Power of attorney is a legal document that allows you to appoint someone to make decisions on your behalf. This can be helpful if you are unable to make decisions for yourself, such as if you are incapacitated or out of the country.
There are two main types of power of attorney:
- Durable power of attorney: This type of power of attorney remains in effect even if you become incapacitated.
- Non-durable power of attorney: This type of power of attorney only remains in effect while you are still able to make decisions for yourself.
When you are the power of attorney for someone, you have the authority to make decisions about their:
- Finances
- Medical care
- Legal matters
- Property
However, it is important to note that you are not allowed to make decisions that are against your loved one’s wishes.
What is an Executor?
An executor is the person who is responsible for carrying out the instructions in a will. If your loved one had a will, the executor will be named in the document. If they did not have a will, the probate court will appoint an executor.
The executor is responsible for:
- Collecting the assets of the estate
- Paying the debts of the estate
- Distributing the assets of the estate to the beneficiaries
Do I Need Probate If I Am the Executor?
If you are the executor of a will, you will need to go through probate. The probate process will allow you to legally distribute the assets of the estate to the beneficiaries.
Even if you were the power of attorney for your loved one, you will still need to go through probate if you are the executor. This is because the power of attorney only gives you the authority to make decisions while your loved one is still alive. Once they have passed away, the power of attorney is no longer valid.
How Can I Avoid Probate?
There are a few things you can do to avoid probate:
- Create a living trust. A living trust is a legal document that allows you to transfer your assets to a trustee, who will manage them on your behalf. When you die, the trustee will distribute your assets to your beneficiaries without going through probate.
- Hold your assets jointly with someone else. When you hold assets jointly with someone else, the assets will automatically pass to the surviving owner when you die. This can help to avoid probate.
- Give away your assets while you are still alive. You can give away your assets to your beneficiaries while you are still alive. This will reduce the size of your estate and may help you to avoid probate.
Conclusion
Whether or not you need probate if you have power of attorney depends on the specific circumstances of your loved one’s estate. If you are unsure, it is best to consult with an attorney.
Frequently Asked Questions
Q: What is the difference between power of attorney and executor?
A: Power of attorney is a legal document that allows you to appoint someone to make decisions on your behalf while you are still alive. An executor is the person who is responsible for carrying out the instructions in a will after you have died.
Q: Do I need to go through probate if my loved one did not have a will?
A: Yes, you will still need to go through probate if your loved one did not have a will. The probate court will appoint an administrator to distribute the assets of the estate according to state law.
Q: How can I avoid probate?
A: There are a few things you can do to avoid probate, such as creating a living trust, holding your assets jointly with someone else, or giving away your assets while you are still alive.
Q: What should I do if I am unsure about whether or not I need probate?
A: If you are unsure about whether or not you need probate, it is best to consult with an attorney. They will be able to advise you on the best course of action for your specific situation.
Durable Powers of Attorney
Durability is another factor that influences how your power of attorney is used. If you become mentally incapacitated, the agent can still act on your behalf thanks to a durable power of attorney. To provide for this durability, your power of attorney document would need to contain certain language. Typically, this language is desired.
Remember that, as long as you are mentally competent to do so, you, the principal, can revoke a power of attorney at any time. A durable power of attorney is not “permanent,” even though it lasts until your incapacity. You are able to withdraw it whenever you choose.
If you recently lost a friend or loved one, handling the estate is probably less of your priority as you grieve. But, there are certain legal issues that must be resolved, and things get trickier if the deceased failed to name an executor or give someone power of attorney prior to their death.
You are entitled to determine who will manage your property after your death. You can specify which assets and possessions belong to your partner, kids, relatives, friends, and even pets by creating a will. You can also ask for large sums of money to be donated to different groups or charities.
JacksonWhite Law is aware of the emotional and frustrating nature of the probate process for all parties concerned. Our objective is to handle the procedure appropriately and cause the least amount of inconvenience to loved ones and family. This article describes power of attorney and who gets it in the event that a person dies without leaving a will.
If you don’t currently have a will, you might want to think about consulting with an estate planning attorney to determine the most effective way to inform the court of your last desires. Creating a will relieves your friends and loved ones of the burden of handling your estate’s affairs while they are grieving, in addition to guaranteeing that your property will pass to the beneficiaries and heirs of your choosing. Everyone needs a will for the following reasons, to name a few:
People who have power of attorney should be aware that, in most cases, accounts at banks and other financial institutions are frozen upon an individual’s death. Put differently, in the event that the principal passes away, you will no longer be able to exercise your power of attorney rights. Institutions don’t lift the freeze until they receive notification from the executor stating that the estate has been settled. Property can now be divided among heirs and beneficiaries.
Can Power Of Attorney Avoid Probate?
FAQ
What three decisions Cannot be made by a legal power of attorney?
What are the risks of being a power of attorney?
Does power of attorney end at death in PA?
Does power of attorney end at death in Texas?
Does a durable power of attorney prevent probate?
Also, a durable power of attorney doesn’t “avoid probate.” The only thing a power of attorney does is give someone the power to act for your father in the event he is incapacitated. It sounds like the attorney may have done more than simply draft a power of attorney, which may explain the increased cost.
Does a will need to be probated?
There is no need to probate the will for the bank account and the children never receive their share of their father’s money. It happens a lot. Siblings use it a lot too, to direct mom’s assets away from their brother or sister. The power of two.
Should I create a will and a power of attorney?
A financial power of attorney might give your son only the right to manage your financial affairs, such as paying bills, but not the right to do things such as sell your real estate. It is almost always recommended that you create a will and power of attorney together.
What is a power of attorney if a principal dies?
Signing a power of attorney (POA) gives you the legal authority to manage the principal’s affairs. This authority does not generally extend past the death of the principal, though there may be an exception if your loved one named you as executor in their estate planning document. A power of attorney after death ceases to be effective.