Does Power of Attorney Become an Executor of the Will Automatically?

By Ellis Roanhorse

A power of attorney grants an individual, known as an agent or "attorney-in-fact," the power to act on behalf of the person granting the power, known as the "principal." This document may give an agent broad authority to manage the principal's finances or limited authority during the principal's lifetime, such as the power to pay specific bills. Executors, on the other hand, are named by a will maker, or "testator," in a last will and testament and their authority only comes into existence upon the death of the testator.

A power of attorney grants an individual, known as an agent or "attorney-in-fact," the power to act on behalf of the person granting the power, known as the "principal." This document may give an agent broad authority to manage the principal's finances or limited authority during the principal's lifetime, such as the power to pay specific bills. Executors, on the other hand, are named by a will maker, or "testator," in a last will and testament and their authority only comes into existence upon the death of the testator.

Agent Vs. Executor

An agent acting under a power of attorney only has the authority to act on the principal's behalf during the principal's lifetime. In fact, a power of attorney -- and by extension, an agent's authority -- is terminated upon the principal's death. Conversely, an executor is named in a last will and testament, which does not come into effect until the person who made it passes away.

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Power of Attorney Vs. Last Will and Testament

Although power of attorney documents are flexible, they do not address who may administer the principal's estate upon the principal's death -- that is what a will is for. The powers granted to an agent are operable only during the principal's lifetime. These powers may include the authority to make health care decisions when the principal is incapacitated or the ability to access bank accounts and purchase real estate. On the other hand, a last will and testament dictates how the testator's property is to be divided after his death. The executor named in the will is responsible for dividing the property according to the testator's wishes.

If a Principal Dies Without a Will or With a Will

If a principal failed to make a will, he failed to name an executor. Because an agent and an executor are two very different things, an agent does not automatically become an executor. This is because the authority granted in a power of attorney cannot address what is to happen after the principal's death. Therefore, an agent's power does not supersede that of an executor if a principal made a will. If the agent named in a power of attorney is the same person named as executor in the principal's will, a probate court will likely approve the executor's appointment unless the principal's relatives object.

Probate Court Appointment

The person named as agent in a power of attorney may petition a probate court for appointment as executor -- also known as "personal representative" -- upon the principal's death. However, the probate court is under no obligation to appoint the agent as executor simply because the agent was given authority via a power of attorney during the deceased principal's lifetime. If a probate court does not believe the agent is an appropriate fit for the role of executor, it will appoint someone else.

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Laws for Power of Attorney in New Hampshire

References

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Does a Power of Attorney Have the Right to Change a Living Trust?

Estate planning often involves creating a living trust and granting someone a power of attorney. A living trust is an arrangement a person enters into while they are alive to use her property to benefit others, called beneficiaries. The trust property is managed and distributed to the beneficiaries according to terms established in a trust agreement by a third party trustee. Many times the terms of the living trust can be changed by its creator during her lifetime. A power of attorney is a document that allows a person, or principal, to give another the ability to act on his behalf as his agent. Whether an agent with power of attorney can change a living trust depends on how the power of attorney is drafted.

Can You Use Power of Attorney When a Person Is Alive?

A power of attorney is a document executed by someone referred to as a principal authorizing another person known as an agent or attorney-in-fact to act for her in performing certain actions or managing her affairs. Not only may you, as agent, use a power of attorney when the principal is alive, but you should not attempt to use one after she is deceased. Powers of attorney terminate upon the principal's death. In contrast, a court-appointed executor, often referred to as a personal representative, usually takes charge of legal and financial matters for the estate of someone who dies.

Power of Attorney Rights

The power of attorney doesn't so much grant rights as powers. Under a power of attorney arrangement, one person -- known as the principal -- grants an agent the power to perform legal acts on his behalf. This grant of authority may be broad or narrow, and it may be of temporary or indefinite duration. A power of attorney must be in writing and signed by the principal to be valid.

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