Does Power of Attorney Override a Will?

By Michelle Kaminsky, J.D.

Does Power of Attorney Override a Will?

By Michelle Kaminsky, J.D.

A last will and testament and a power of attorney are two of the most common legal documents that authorize another person to take control of your affairs. Because these documents perform very different functions—even coming into effect during different circumstances—a power of attorney doesn't override a will.

That said, certain provisions contained within a power of attorney could affect will distributions, so it's important to understand how the two work together. Because both of these documents are among the most important you can have in your estate plan, proper legal advice in creating and executing them is crucial.

Here's everything you need to know.

Power of Attorney Versus a Will?

In the plainest of terms, one of the biggest differences between a last will and testament and a power of attorney is the point at which each spring into action. A will takes effect at the death of the testator (the person writing the will), while a power of attorney takes effect during the lifetime of the principal (the person executing a power of attorney).

In both documents, you can choose the person who will take on this role. In a will, this individual is called the "executor," while through a power of attorney, you can name an "agent" or "attorney in fact." If you do not choose your own executor or agent, a court will appoint someone to handle your affairs.

If you change your mind regarding your choice of agent or executor, you may change the document by following your applicable state law in doing so. Moreover, if during your lifetime you decide to revoke your power of attorney or last will and testament entirely, and you are of sound mind, you may do so following the procedures outlined by your state.

What Issues Are Covered in Each?

Generally speaking, most people draft a power of attorney so they can choose a person to take over financial, health, or other decisions should they become incapacitated and unable to handle such things on their own. Within the document, you can list which duties you want the agent to perform, and it can even be as specific as performing one real estate transaction, or for a particular period of time as a temporary power of attorney. A living will or advance directive, which specifies your preferred treatments to medical professionals, can work in conjunction with a health care power of attorney, authorizing your agent to make decisions on your behalf.

A will, on the other hand, is a way for you to dictate where your assets will go upon your death. Your chosen executor manages the distribution of your assets, as described in your will. The executor closes out the estate through probate, which also entails making sure debts are paid off, and all appropriate tax returns are filed.

Does a Power of Attorney Have an Effect on a Will?

Although a power of attorney doesn't override a will as the two documents provide different authorizations and come into effect at different moments in time, decisions made and actions taken by your agent during your lifetime may affect your assets to be distributed through your will. For instance, if you become incapacitated, your agent may make financial decisions that increase or decrease your assets' value. If you do not regain the ability to handle your own affairs before your death, your assets and resulting estate to be distributed at your death will have been affected by the power of attorney.

As you can see, a power of attorney's agent and a will's executor can both retain tremendous power over your affairs, just at different times. For both roles, you should choose someone competent and willing to perform the duties, and above all, someone you can trust to follow your wishes.

You can further safeguard against agent or executor abuses of authority by drafting the language of your power of attorney and last will and testament as clearly as possible, so there isn't much room for discretion. In some instances, a simple power of attorney or last will and testament form may do, but because of the potential ramifications of poorly written documents, securing reliable legal advice is highly recommended.

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.

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