Q: Does a person appointed as “attorney-in-fact” have any authority after the one who appointed them dies?
When our mother died, one brother had been appointed “personal representative”, and at the same time I was appointed “attorney-in-fact”. Does the the attorney-in-fact have any authority or say so in the handling of the estate or is it solely up to the personal representative to see that the conditions of the will are carried out as directed by the deceased?
A: No. An agent cannot act on behalf of the principle under a POA after the principle’s death. Once a personal representative is appointed, the personal representative acts on behalf of the estate under the supervision of the court
A: You are right in your understanding that any power of attorney that has been given by the principal (the person who is giving the authority to an agent) expires upon their death. The reasoning for this, is that you cannot be an agent for a dead person. There is no way to see whether the agent is acting in the principal's best interests.
Kenneth Prigmore agrees with this answer
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Great question. A Power of Attorney names someone as your Attorney-in-fact. This always ends at death or before. The Power of Attorney is never used after death.
Please note that the Personal Representative of the Estate technically needs to be approved by a judge in Probate Court to have official capacity. If assets are passed on privately, (a non-private transfer might be a deed to a home that is recorded with the county, or money in a bank account), then those private assets are often passed to heirs without ever going to court. This usually happens outside the court when no one knows the official capacity is necessary, or no one objects to the distribution of property.
If you object to how the Personal Representative is handling things, you can open a probate case and argue the Personal Representative has not yet been named and may be using their perceived authority incorrectly.
A judge will then determine who should serve as personal representative and tell them what they must do under the terms of the Will. If they refuse to follow the Will, the Judge can remove them and replace them with a new Personal Representative.
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