Exercising power of attorney for a living person or serving as an executor to the will of a deceased individual entails significant duties. Someone who holds power of attorney for an individual may also be the executor of that person's will. However, exercising power of attorney involves very different duties and responsibilities than serving as the executor of a will.
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Definition of an Executor
The executor is charged with disposing of the estate of the deceased. The deceased may appoint an executor before death. If an individual dies intestate, or without a will, the court disposes of the deceased's estate. Any person who is competent to create a will can serve as an executor. Many individuals appoint family members and friends as executors, but the job is best left to professionals unless the appointed individual has appropriate training in finance and law or enlists the services of a bank or trust to serve as co-executor, Bankrate.com advises. The work of an executor may require 12 to 18 months to complete.
Power of Attorney Definition
Power of attorney empowers one person to serve as an agent to handle the legal and financial affairs of another person when she is physically or mentally incapacitated. Power of attorney may be durable, which means that the agent is empowered to deal with all the legal and financial affairs of the incapacitated person, according to Legal Services for the Elderly. An advance directive is a specific type of power of attorney that allows the agent to make medical and end-of-life decisions pertaining to the named individual.
Duties of an Executor
In disposing of the estate of the deceased, the executor is charged with a fiduciary duty, or heightened level of responsibility, to carry out his wishes. In performing these duties, the executor must take an inventory of the estate; locate eligible heirs; provide official death notices to creditors where the deceased had accounts; obtain an official court petition to probate the will; maintain the integrity of the estate by paying bills, maintaining insurance policies and heading off overeager heirs; file the final estate income tax return, which is due within 9 months after the death of the deceased; file the final state and federal income tax returns for the deceased; and arrange for the care of minor children, Bankrate.com states.
Power of Attorney Duties
An individual holding power of attorney has a fiduciary duty to carry out his duties according to the interests of the incapacitated individual. In order to carry out his duties, the agent is authorized to withdraw money from the bank account of the incapacitated individual, write checks on her behalf, enter into contracts and pursue insurance claims and lawsuits, according to Legal Services for the Elderly. He may also authorize certain medical procedures such as emergency surgery.
References & Resources
- The Free Legal Dictionary: Executor
- Bankrate.com: Estate Executor -- No Job for Amateurs
- Bankrate.com: Estate Planning for Everyone
- Legal Services for the Elderly: What Is Power of Attorney?
- University of Maryland University College: Probate and the Executor of a Will
- Medline Plus: Advance Directives
- American Bar Association: ABA Guide to Wills and Estates
- IRS.gov: Power of Attorney and Declaration of Representative
- Free Legal Docments: Executor of a Will
- Free Legal Documents: How to Write a Will