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

By Ellis Roanhorse

A power of attorney grants an individual, known as an agent or "attorney-in-fact," the power to act on behalf of the person granting the power, known as the "principal." This document may give an agent broad authority to manage the principal's finances or limited authority during the principal's lifetime, such as the power to pay specific bills. Executors, on the other hand, are named by a will maker, or "testator," in a last will and testament and their authority only comes into existence upon the death of the testator.

Agent Vs. Executor

An agent acting under a power of attorney only has the authority to act on the principal's behalf during the principal's lifetime. In fact, a power of attorney -- and by extension, an agent's authority -- is terminated upon the principal's death. Conversely, an executor is named in a last will and testament, which does not come into effect until the person who made it passes away.

Power of Attorney Vs. Last Will and Testament

Although power of attorney documents are flexible, they do not address who may administer the principal's estate upon the principal's death -- that is what a will is for. The powers granted to an agent are operable only during the principal's lifetime. These powers may include the authority to make health care decisions when the principal is incapacitated or the ability to access bank accounts and purchase real estate. On the other hand, a last will and testament dictates how the testator's property is to be divided after his death. The executor named in the will is responsible for dividing the property according to the testator's wishes.

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If a Principal Dies Without a Will or With a Will

If a principal failed to make a will, he failed to name an executor. Because an agent and an executor are two very different things, an agent does not automatically become an executor. This is because the authority granted in a power of attorney cannot address what is to happen after the principal's death. Therefore, an agent's power does not supersede that of an executor if a principal made a will. If the agent named in a power of attorney is the same person named as executor in the principal's will, a probate court will likely approve the executor's appointment unless the principal's relatives object.

Probate Court Appointment

The person named as agent in a power of attorney may petition a probate court for appointment as executor -- also known as "personal representative" -- upon the principal's death. However, the probate court is under no obligation to appoint the agent as executor simply because the agent was given authority via a power of attorney during the deceased principal's lifetime. If a probate court does not believe the agent is an appropriate fit for the role of executor, it will appoint someone else.

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Difference of Power of Attorney & Executor of Will
 

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Do You Still Have Power of Attorney if Someone Dies?

Powers of attorney do not survive death. After death, the executor of the estate handles all financial and legal matters, according to the provisions of the will. An individual can designate power of attorney to his attorney, family member or friend and also name that same person as executor of the estate. When an individual assigns power of attorney to an agent, that agent represents him in life. When the individual names an executor of his estate in his will, that agent represents him in death. A durable power of attorney with broad authority and specific prohibitions helps protect the individual's estate during his lifetime.

Can a Power of Attorney Change Beneficiaries on Bank Accounts?

An individual who has been given authority via a power of attorney, also known as an "agent," may sometimes change beneficiaries on bank accounts. Although state law varies, this type of authority may only be granted in specific circumstances. When an agent wields authority she does not actually have --such as changing beneficiaries -- it may be considered an abuse of her power.

Can an Executor Endorse the Deceased's Check?

Upon an individual’s death, it is common for those organizing the decedent’s personal effects to find uncashed checks made payable to the decedent. Also, refund checks from utility companies, insurance companies or nursing homes may arrive in the decedent’s name or name of the estate. These checks are part of the estate and are subject to the will, just as a financial account or a parcel of real property is.

Power of Attorney

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