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

By Stephanie Kurose, J.D.

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

By Stephanie Kurose, J.D.

Once your husband dies, it's too late to get power of attorney. Even though you're married, you're not automatically granted that power to act legally on his behalf. Power of attorney must be obtained while your husband is still alive and can give his consent in granting you such authority. However, even though it's too late to get power of attorney, you can be appointed as his estate's representative.

Open laptop on a desk next to paperwork labeled "Power of Attorney"

Power of Attorney Basics

Power of attorney is the authority to act for another person in a general or specified manner. It's a legal document that allows a person—known as the "principal" to designate an "agent" or "attorney in fact" (which could either be a person or organization)—to manage their affairs. The three most common areas where powers of attorney are used are financial, legal, and health matters.

A general power of attorney gives broad powers to the agent to handle things such as conducting financial or business transactions, buying life insurance, settling claims, or collecting debts. By contrast, a person can also create a more narrow power of attorney, which specifies exactly what powers an agent may exercise. For instance, you can create a special power of attorney to grant an agent authority to sell your home.

In addition to general and special powers of attorney, there are also durable and non-durable powers of attorney. A durable power of attorney is one that remains effective even if the principal becomes incapacitated or is no longer able to make decisions on his own. If a person wants this type of power of attorney, he must include language in the document explicitly saying so. A non-durable power of attorney, by contrast, terminates as soon as a person becomes incapacitated. It should be noted that regardless of whether a power of attorney is durable or non-durable, the authority is automatically terminated immediately upon the death of the principal.

Estate Representative

If it's too late to get power of attorney, one alternative is to become his estate's representative, also known as an executor. After your husband's death, his estate must be submitted to the local probate court for administration. This includes submitting his will if he has one, or if he does not, submitting his death certificate to begin the probate process.

If there's a will, your husband likely appointed an executor, which the court will confirm. If there's no will or if the will failed to appoint an executor, the probate court will appoint one to manage your husband's estate. Courts generally give spouses and family members priority for appointment if they are willing to accept the responsibility.

Letters Testamentary

If you are appointed as the representative of your husband's estate, the court will give you a document either called Letters Testamentary or Letters of Administration. This document grants you the authority to act on behalf of your husband's estate.

This authority includes accessing your husband's bank accounts, paying any final bills, selling his property, and accomplishing many other tasks required to close his estate.

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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