Does Power of Attorney Override a Will?

By Marie Murdock

A power of attorney may terminate in a number of ways--upon a stated expiration date, when revoked by the principal who gave the power of attorney or upon the death of that principal. Death is the point at which the powers cease under a power of attorney and property passes into an estate, provided other estate planning provisions haven’t been made. If the deceased died testate, or with a will, the terms of her will become effective once admitted to probate.

Attorney-in-Fact

The principal may give limited or very broad powers to her attorney-in-fact under a power of attorney depending on her intentions. During estate planning, a parent or other relative may have appointed you to act as her attorney-in-fact during her lifetime under the terms of a durable, general power of attorney. Your authority under this type of power of attorney will often be unlimited, allowing you to act in the stead of the principal in almost any situation. A durable power of attorney states that it is effective in the event the principal later becomes mentally incapacitated and is unable to manage her affairs. Persons relying on the power of attorney will generally require that you present the document before allowing you to sign on the principal’s behalf. They may also require that you sign an affidavit stating that the principal is still living at the time of the transaction. If the principal is not living, you will not be allowed to sign documents with the power of attorney.

Personal Representative

You may have been named by a relative in his will to act as his personal representative, also referred to as executor. This gives you the authority to file the will for probate and petition the court for letters testamentary. While the powers granted to an attorney-in-fact are given by the person who signs the power of attorney, powers granted to you as personal representative are by virtue of a court order. Banks, attorneys or other institutions may refuse to accept a power of attorney for various reasons, but most people and institutions will be required to accept letters testamentary as the final authority of a decedent’s estate.

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Power of Attorney After Death

Any powers granted to you under the terms of a power of attorney are taken away at the principal’s death by law. Laws in some jurisdictions, however, may offer banks or other institutions limited protection from liability if the employee who accepts the power of attorney and performs the transaction is unaware of the death of the principal. You, as attorney-in-fact however, may be held personally liable for any acts taken after the death of the principal that are detrimental to the estate of the deceased.

Will After Death

Once you have been appointed personal representative, you will generally be given the powers set out in the will. No one else, including prior attorneys-in-fact will be allowed to act on behalf of the estate. Unless you renounce your rights to act or are removed due to a breach of your fiduciary duties or other reason considered valid by the court, you will be in charge of handling all affairs of the estate until you are discharged after a final settlement.

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References

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