Legal matters can be confusing and complicated, with the circumstances regarding the power of attorney and death being some of the messiest. You may be confused as to what powers it has in this scenario!
Ultimately, power of attorney ends with the death of the grantor. Once somebody dies, any power held over them by others is considered null and void. The only people with executive control are the people arranging their funeral and the executor of their will.
It may seem like a simple answer, but as with all other legal matters, it's not as cut-and-dry as it seems. If you would like more insight into this complex legal issue, read on! We will be covering the ins and outs of legal authority over the deceased.
Is Power Of Attorney Valid After Death?
Ultimately, no, power of attorney is not valid after death. Once somebody dies, the government considers all legal authority held over them null and void, as established previously.
Exceptions exist for aspects that could be sold off, of course. If somebody had sold rights to their music or merchandise, that deal might still be in place for a long time after the person's death.
With those few exceptions, very little, if any, authority is held over the dead person.
Their friends or family may arrange a funeral, over which the dead person will have no say, but nobody considers this a power of attorney.
In the strictest legal terms, power of authority is outright invalid after the grantor is deceased.
There is no way around it, as any legal authority would be over their estate and material rights- this is, obviously, not power of attorney.
However, if the deceased person has a will, they may have what is known as an executor; this person is capable of making decisions regarding the deceased's will.
In these cases, a will's executor is the closest thing to somebody with power of attorney after death.
The writer of a will must choose its executive during their lifetime and is often a lawyer, family member, or trusted friend.
Somebody may petition to become the executor of a will after the testator has passed, but this is notoriously challenging.
If you are not a family member, the odds are very low that any legal entity will grant you executorship posthumously.
The best way to become an executor is to speak to the testator about the subject while they are still alive. However, accidents happen; if somebody meets a sudden and unfortunate death, they may not have left a will.
Who Has Power Of Attorney After Death If There Is No Will?
If somebody dies without leaving behind a legally notarized will, the matter of inheritance can get tricky.
We have already well-established that there is no power of attorney after death; there is executorship, but that requires a testator having written a will.
In particular cases, there are no wills in the case of a deceased person. In these cases, the state will often assume any legal power over the deceased and their belongings.
Every American state has individual laws regarding the division of assets after somebody's death if the deceased does not leave a will. This field is known as intestate succession.
If a will is not in place, the executor of the deceased person's estate is no longer an executor- they are what is known as an administrator or a personal representative.
The probate court is the legal entity that deals with posthumous property issues, including wills- or the lack thereof.
Family members may apply to become administrators, or the court may approach one if the decision is not clear-cut.
Each state and each probate court will have a different priority list for who becomes an administrator. For example, in Oklahoma, the first person to be selected is the deceased's spouse or whoever the spouse chooses as administrator.
This priority list goes downward through family members, starting with spouses and going on to children, parents, siblings, grandchildren, and cousins.
If none of these family members are available or willing, the estate will fall to any creditors. If the deceased has no creditors, any person deemed competent could become their administrator!
Other states, such as Florida, have vastly different priority lists regarding who can serve as administrators.
While Florida and Oklahoma both share the surviving spouse in the first spot- as do most states- the list otherwise seems to be an elective system. It goes as such:
- The surviving spouse
- The person selected by a majority of the heirs
- The heir nearest in degree
As if this list isn't already more convoluted than Oklahoma, it states that the court may select the most qualified out of the three options.
This ruling means that, while a surviving spouse is the priority administrator, they could be passed over entirely if their children select somebody else.
With such varying rules between states, it is evident that writing a will is a very necessary action.
While nobody likes to think about their death, it is important to make sure that your family can cleanly and easily split your estate up after your death in a manner that is consistent with your wishes.
After all, most people would rather have their children handle their estate than their student loan company. If you are in Oklahoma, specifically, you should make sure your will is up-to-date!
How Long Does Power Of Attorney Last After Death?
Power of attorney expires immediately upon death. The second somebody is pronounced legally dead, anybody with the power of authority over them loses said power.
There is no way to extend power of attorney beyond the grantor's death, though if the person who holds power was trusted by the deceased, they may be selected to lead the planning for the deceased's funeral.
In this case, the person has the opportunity to make a final few decisions regarding the grantor's life, though it is not in any official capacity.
There are some ways to extend administrative capacity over the deceased person's affairs, however, and those are the aforementioned executorship and administratorship.
Executors are appointed for the duration of the execution of the will; their job is over when all of the affairs have been wrapped up.
For executors, this takes a minimum of ninety days in some states, such as Florida. These ninety days are a creditor's period, where the estate must pay off any creditor's claims.
Apart from this, a reasonably-sized estate may take six to nine months to clear out, assuming no major roadblocks come up at an unexpected time.
Contested wills can extend the process, however. In most states, contesting a will can be done within twelve months of the will maker's death.
This time limit means that you can theoretically contest a will months after it has been settled, though you may still be able to file a claim if you have a good enough reason for missing a deadline.
Murphy's law states that whatever can go wrong will. If your will goes wrong, in the worst way possible, somebody may file a claim on the last day possible, if not later.
This late filing means that settling a will could last upwards of a year if contested.
Additionally, the following court proceedings could also last upwards of a year, bringing the total time managing the will to over two years.
Larger estates and particularly messy contentions can draw this period out even further, as the court system will take as long as necessary to produce results compliant with the law.
Adminstratorships can extend this period even further, as in some states, probate courts may take between one to four months to appoint an administrator.
In other states, the selection may be completed via a quick online application, which a judge may approve. These variations are why it is vital to know your state's laws on the subject.
Ultimately, it boils down to the following timeframes; power of attorney expires immediately upon death, while executorship and administratorship last until the estate is settled.
The legal aspects behind the so-called power of attorney can be a complicated field. To wrap things up nicely, it is vital to remember that power of attorney does not exist after a grantor's death.
You may seek executorship of their will, or you may be granted administratorship over their estate, but this is not the same as power of attorney- though they have many similar aspects.
By now, you can hopefully see just how important it is to write a will so that your assets do not get divided in a manner inconsistent with your wishes after you pass away.
When you write a will, it is necessary to name an executor, and it must be somebody who you trust- you don't want somebody cruelly misappropriating your assets!
With all of this in mind, you know all that you need to know regarding power of attorney after death and more.
Whatever your goals are, whoever you want to represent after death- or whoever you want to execute your will- you now have the tools to do so!
Shawn Manaher is a former financial advisor, has founded 5 online businesses, and is a coach, speaker, podcast host, and author. He's been featured on Forbes, The Consults Corner on TAE Radio, The Writing Biz, What's Your Story, and more.