Difference of Power of Attorney & Executor of Will

By Marie Murdock

The difference between an attorney-in-fact appointed to act under a power of attorney and an executor appointed to act under a last will and testament is literally the difference between life and death. The principal, or maker of a power of attorney, appoints an attorney-in-fact to handle her affairs during her lifetime. The maker of a will, or testatrix, however, designates an executor to handle her affairs after death.

Attorney-in-Fact

If you are appointed as attorney-in-fact under a power of attorney, you will be authorized to act on behalf of the principal during her lifetime. The power of attorney may be very specific, only authorizing you to perform certain actions, like signing a deed for a particular piece of property. It may, however, be very broad and general, authorizing you to perform any act that the principal could perform herself if present. Note that the person to whom you present the power of attorney may refuse to accept it. For instance, a title company may refuse to accept a power of attorney without durable language or one that is not notarized properly according to state law. Durable language in a power of attorney simply states that the power of attorney will remain effective even if the person who made it becomes mentally disabled or incompetent.

Executor

Whereas an attorney-in-fact is granted his authority when the principal signs the power of attorney, the executor is not fully authorized to act until the judge signs an order -- called “Letters Testamentary” -- granting him that authority. Your powers as executor are given by the will, but only become effective when the will is accepted for probate and the court enters the appropriate orders.

Protect your loved ones. Start My Estate Plan

Revocation of Power of Attorney

The principal may revoke her power of attorney by executing a document called "Revocation of Power of Attorney." This revocation should be filed in the county land records where the principal lives and transacts business. If at all possible, the principal should obtain and destroy the power of attorney that is being revoked.

Removal of Executor

Whereas an attorney-in-fact may only have his powers revoked by the principal, an executor may only be removed by the court. The heirs and beneficiaries will have to prove to the court that the executor is not acting in their best interest according to the instructions given in the will and is permitting waste of the assets of the estate.

Protect your loved ones. Start My Estate Plan
Can You Use Power of Attorney When a Person Is Alive?
 

References

Resources

Related articles

Is Power of Attorney Valid After Death?

If you wish to give another person the authority to make important decisions and act on your behalf, you may draw up a power of attorney, or POA. This document allows an agent to sign documents or otherwise act in your place. A specific POA grants authority over a single matter or field, while a general POA gives blanket authorization in any and all matters, as allowed by state law. The POA expires under certain circumstances, including death.

Can a POA Change a Will?

A power of attorney allows a person, referred to as an agent or attorney at law, to act on behalf of another person, the principal. The authority is granted to the agent upon the execution of a power of attorney document that is signed by the principal. Although an agent can make important decisions and perform certain actions for the principal, the agent cannot alter a will, a document consisting of the principal's directions for his estate after his death.

Power of Attorney Guidelines for State of Oregon

A power of attorney is a legal document that allows you to appoint someone to act on your behalf if you become incompetent of incapacitated. The Oregon Revised Statutes set forth the requirements for a valid power of attorney, who may serve as your agent and how the power of attorney may be used.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

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

A power of attorney grants an individual, known as an agent or "attorney-in-fact," the power to act on behalf of the ...

Assuming a Mortgage With Power of Attorney

While state laws regarding powers of attorney vary, a power of attorney can allow one person to conduct financial ...

How Effective Is Power of Attorney After Death?

A power of attorney is a legal document in which one person, known as the principal, appoints another, known as an ...

Power of Attorney Rights

The power of attorney doesn't so much grant rights as powers. Under a power of attorney arrangement, one person -- ...

Browse by category
Ready to Begin? GET STARTED