Can an Executor of a Will Give a Power of Attorney to Someone From Prison?

By Timothy Mucciante

The executor of an estate possesses only those powers granted to him under a will and by state law. A power of attorney granting a prisoner authority over an estate may be possible depending on the powers granted to the executor. Although an executor has the right to delegate authority to anyone he deems fit, he must do so while keeping the fiduciary duty he owes to the estate in mind.

Powers Granted by the Will

The maker of a will, also known as the testator, appoints an executor (also known in some jurisdictions as the “personal representative”) who carries out the decedent’s last wishes. Powers granted to the executor are specificied in the will. Typically, these powers include the authority to inventory and dispose of estate assets, pay creditors and distribute assets to the beneficiaries as outlined in the will. If the executor’s duties and responsibilities are not defined in the will, the executor must act in accordance with executor duties as set forth in state law.

Powers Granted by State Law

The executor has a fiduciary duty to act prudently in handling the administration of the estate. If he breaches this fiduciary duty by causing damage or loss to the estate beneficiaries or creditors, he may be liable to any interested party that loses money or other assets. An executor may appoint or employ any person, including a prisoner, to assist in identifying estate heirs and creditors, collecting and distributing estate assets and preparing an accounting. He may rely solely on the decision or actions of any person, prisoners included, that he appoints to assist him in handling estate matters.

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Breach of Fiduciary Duty

If an executor gives a prisoner power of attorney to manage or assist in the administration of the estate, he may be liable for any of the prisoner's actions that negatively affect the estate. If the prisoner, as agent of the executor, steals money from the estate or commits another crime using the powers granted to him by the executor, the executor may have breached his fiduciary duty by giving the prisoner power of attorney. It will be up to the probate judge to determine if his actions fall below the standard of care described by state statute.

Remedies

A beneficiary or estate creditor who does not agree with an executor's decision to grant a prisoner power of attorney may request the probate court to temporarily restrain the executor from doing so. Alternatively, a beneficiary or creditor may also request the probate court remove the executor if it appears he breached his fiduciary duty to them by giving a prisoner power of attorney . The executor must stop most work for the estate once he receives notice of the removal request to the judge.

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What Is the Meaning of "Executor of an Estate"?

References

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Suing the Executor of a Will

Beneficiaries named in a will may sue the executor based on the actions the executor took in managing the estate. State laws concerning the management of an estate vary and as such, consider consulting with a licensed attorney prior to any attempts to sue an executor.

What if a Beneficiary Steals From the Estate?

An estate is created when someone dies. By the terms of a will, estate assets pass to heirs and beneficiaries. If someone named as a beneficiary gets up to fraud, larceny or theft of estate assets, he's subject to criminal charges brought by other heirs or by a prosecutor. If that same individual has been named as a personal representative or executor of the estate, state law would also provide sanctions such as fines, court costs and restitution.

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