How Do I Get a Power of Attorney After My Husband Has Died?

by Heather Frances Google

Even though you are married, you cannot simply sign your husband’s name or access assets that are only in his name. To act on his behalf legally, you must obtain a power of attorney appointing you as his agent. However, once a person dies, he cannot grant you a power of attorney and any previous powers of attorney expire. Instead, you can be appointed as his estate’s representative.

Power of Attorney for Finances

A power of attorney for finances grants the agent authority to conduct financial affairs for the person who granted the power of attorney, called the principal. The principal can give his agent very limited authority, such as authorizing only one transaction, or he can give broad authority for his agent to handle all of his finances. Either power of attorney is permitted, though a financial institution may prefer the principal to use the institution’s own power-of-attorney format.

Durable vs. Non-Durable

When a principal becomes incapacitated, the power of attorney may terminate immediately upon his incapacity or remain effective throughout. If the power of attorney remains effective during the principle's incapacity, it is known as a durable power of attorney. A principal can create such a durable power of attorney simply by including appropriate language in the document itself. However, even a durable power of attorney expires when the principal dies. After your husband dies, you cannot legally use a power of attorney to accomplish anything regarding your husband’s estate.

Representative of the Estate

After your husband’s death, his estate will likely need to be submitted to your local probate court for administration. The court will appoint a representative of the estate — sometimes called an executor, administrator or personal representative — to manage your husband’s estate during the probate process. If your husband left a will naming an executor, the court likely will appoint that person as executor. If your husband did not leave a will, courts usually will give you priority for appointment as the estate’s representative if you want the position.

Letters of Administration

If you are appointed as the representative of your husband’s estate, you will receive “letters testamentary” if your husband left a will or “letters of administration” if he did not. Similar to a power of attorney, these documents grant you authority to act on behalf of your husband’s estate. You can use your letters testamentary or letters of administration to access your husband’s bank accounts, pay his bills, sell his property, and accomplish any other tasks to close his estate.