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

By Tom Speranza, J.D.

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

By Tom Speranza, J.D.

An agent with power of attorney and the executor of a will are two distinct legal roles that arise under different documents and laws. Although the same person can serve as both your agent (also called attorney-in-fact) and your executor, there is no requirement to appoint a single person to serve in those capacities and no automatic process under the law for one position to transition into the other.

Man signing a document labeled "Power of Attorney"

Appointing an Attorney-in-Fact and an Executor

A power of attorney arises when someone, called the principal, appoints someone else, known as the agent or attorney-in-fact, to make decisions for the principal about financial and property matters during the principal's lifetime. A power of attorney can become legally effective immediately, or if/when the principal becomes physically or mentally incapacitated.

A last will and testament has a different purpose. A person who creates a will (called a testator) documents their instructions on how to handle their assets and debts after they die. In the will, the testator names an executor to take over responsibility of their assets, including distribution.

Duties of Attorney-in-Fact and Executor Status

The difference between an attorney-in-fact and an executor is literally the difference between life and death. A power of attorney has legal effect only during the principal's lifetime, and it terminates automatically when the principal dies. As a result, the attorney-in-fact has the ability to make decisions about and manage the principal's legal affairs only while the principal is alive. A will, in contrast, only becomes effective after the testator's death, and the executor has no power or authority until the testator dies.

A power of attorney can be as broad or as narrow as the principal desires. In other words, the principal can grant an agent blanket authority to manage financial or legal affairs, or the agent can receive very limited powers. An executor usually receives all the power and authority needed to navigate the will through the probate process, including the power to make decisions if the will or the law is ambiguous on any issues that arise during probate.

Removal from Duty

Attorneys-in-fact and executors also differ in how their authority can be revoked. Because powers of attorney only apply while the principal is alive, the principal can revoke the agent's authority at any time for any reason. If the principal becomes incapacitated and cannot remove the attorney-in-fact, the third parties affected by the attorney-in-fact's decisions (such as the principal's family members) can petition a court to remove the attorney-in-fact. But they need to prove that the attorney-in-fact made decisions that were not in the best interest of the principal or has acted contrary to the principal's intentions in granting the power of attorney.

Removing an executor from a will also requires an action in court. The beneficiaries of the will need to prove to a judge that the executor has taken actions that are not in the best interest of the estate or has otherwise not complied with the terms of the will.

Ways to Transition from Attorney-in-Fact to Executor

Because an attorney-in-fact does not automatically become the principal's executor upon the principal's death, financial issues often arise while the executor waits for their formal appointment in the probate process. During this time, the deceased principal probably has bills that require payment, and family members spend money on funeral expenses that the estate will eventually reimburse. To get around the financial problems caused by this period of time during which there's neither an attorney-in-fact nor an executor with the power to act on the principal's behalf, families often set up joint bank accounts or trusts prior to the principal's death to provide a source of needed funds.

If you need to appoint a power of attorney or choose an executor, learn more about the differences between these two responsibilities before determining the appropriate next steps. Understand that it is possible for an attorney-in-fact to transition to an executor under certain circumstances. Truly grasping these details can better protect you and your family.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.