Is a power of attorney good after death? Here's what you should know about using power of attorney after the death of the principal.
A power of attorney grants someone the legal authority to act on behalf of the principal. But is a power of attorney valid after the principal dies?
The short answer is no, a power of attorney grants an agent legal authority to act on behalf of the principal during their lifetime, but it expires once the principal dies.
So what happens to the agent's ability to manage a principal's affairs once a person dies? In this article, we'll cover the basics of powers of attorney, whether they expire when a principal dies, and what happens to a principal's affairs after they pass.
So, what is a power of attorney? A power of attorney, or POA for short, is a legal document by which one person authorizes another to act on their behalf in certain circumstances. Those circumstances can be broad, as in a general power of attorney, or limited to specific contexts, as in a special power of attorney.
The person who creates the document is called the principal, and the person they authorize to act on their behalf is called the agent or attorney-in-fact. People often select a trusted family member as their agent, though some people select a lawyer or another professional. (But note that the agent does not need to be a lawyer, notwithstanding the term “power of attorney.”)
There are several types of power of attorney based on the scope of legal authority the principal chooses to grant. For instance, someone might create a financial POA to authorize someone to handle financial matters on their behalf, or they could create a healthcare POA if they want to ensure someone can make medical decisions in the event they cannot make those decisions for themselves.
You do not necessarily need a lawyer to create a power of attorney document, but it is often useful to speak with an estate planning attorney if you have questions about the different types of POA or the specific laws in your state.
Another key distinction is between durable powers of attorney and non-durable (or regular) powers of attorney. A durable power of attorney remains in place and allows an agent to act on a principal’s behalf even if they become incapacitated. A non-durable POA, meanwhile, expires if the principal becomes incapacitated.
But note that state laws vary regarding powers of attorney, and some states (including Pennsylvania) assume that a power of attorney is a durable POA by default.
So, is power of attorney valid after death? No, a power of attorney expires after the principal passes away.
There are several ways a power of attorney could expire, including:
But regardless of what the power of attorney document says, in all fifty states, a power of attorney expires upon the principal's death.
This makes sense, though, given that a power of attorney grants an agent authority to act on a principal’s behalf during their lifetime.
When someone passes, however, you can no longer act on their behalf. Instead, the probate process kicks in, and it is all about administering their estate.
Probate laws vary by state, so the probate process is slightly different in Texas than it is in New York, for instance. Additionally, the probate process unfolds differently depending on whether or not the decedent had a last will and testament.
Most wills name an executor, who is essentially a personal representative selected by the decedent to oversee the administration and distribution of their estate. So while an agent named in a power of attorney may act on a principal’s behalf during their lifetime, an executor is responsible for managing that person’s estate once they pass.
If there is not a will, and thus no executor, the probate court will typically appoint an estate administrator who fulfills the same duties as an executor. The probate judge often selects a trusted family member of the decedent to act as the estate administrator.
And note – it is entirely possible that an executor, or a court-appointed administrator, is the same person who the principal designated as their agent in a power of attorney document.
But the critical point is that a power of attorney is no longer valid after the principal's death. (Check out our article Power of Attorney vs Executor - What's the difference? for more info).
Yes, a durable power of attorney also expires upon the death of the principal. A durable POA remains in effect if the principal becomes incapacitated, but all POAs expire when the principal dies.
People often have various questions about what they can and cannot do under a power of attorney after the principal's death. For instance, people often wonder:
But the answer to all these questions is No because a POA is not valid after death.
So how long does power of attorney last after death? The simple answer is that it does not last after the death of the principal, and an agent’s authority expires along with the POA as soon as the principal passes away.
Using power of attorney after death could be considered an abuse of power of attorney.
Abuse of power of attorney could lead to civil or even criminal penalties, and it could occur before the principal passes away. (For instance, if an agent under a valid POA exceeds the scope of their authority or commits fraudulent activity).
Thus, the agent under a power of attorney must immediately stop acting on the principal’s behalf once the principal dies to ensure they do not abuse the power granted to them.
So, is a power of attorney valid after death? No, a power of attorney expires upon the principal's death, and the agent no longer has the legal authority to act on behalf of the principal.
Whether it be cashing or writing a check or opening or closing bank accounts, an agent must immediately cease acting on behalf of a principal once that person dies.
Instead, the probate process begins, and an executor becomes responsible for guiding the deceased person's estate through the probate process. (If the deceased person did not name an executor in their last will, the probate court would appoint an estate administrator to act as personal representative of the deceased person's estate).
If you have questions about power of attorney rules or the probate process in your state, it may be worth speaking to an experienced estate planning lawyer.