QUESTION
Is there a conflict between a Durable Power of Attorney and an Executor of a will?
Asked on Mar 23rd, 2013 on Estate Planning - Colorado
More details to this question:
Is there a conflict between a Durable Power of Attorney and an Executor of a will?
26 ANSWERS
No. A power of attorney terminates at death. The executor starts after death.
Answered on Apr 01st, 2013 at 2:27 AM
Civil Litigation Attorney serving Ventura, CA
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The Law Office of Robert I. Long
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In California, there is rarely a conflict. The Will has no legal effect until after the testator passes away. Quite the opposite, a power of attorney is only effective while the principal is alive (except for a few powers which survive pertaining to last illness and final arrangements). So one doesn't "start" until the other one "ends."
Answered on Mar 31st, 2013 at 8:21 PM
Any conflict is resolved by the fact that the Durable power of attorney is effective only when the person who executed it is alive and the executor has no power until after the person who executed the will dies and the executor is granted power through the probate court.
Answered on Mar 26th, 2013 at 11:17 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Power of attorney expires at death. Only POSSIBLE thing an attorney-in-fact can still do is authorize disposition of the body.
Answered on Mar 25th, 2013 at 2:58 PM
Business Transactions Attorney serving Los Angeles, CA
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Doland & Fraade
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None. The Durable Power ceases to have any validity at the death of the grantor of the Durable Power. Thereafter, only the executor of an open estate has power subject to supervision by the Court.
Answered on Mar 25th, 2013 at 2:57 PM
Durable power of attorney is valid while the person giving the power is alive, it becomes inactive upon the death of the grantor. The powers given to the Executor of the Will do not become active until the death of the grantor. In short there should be no conflict between the attorney-in-fact and the executor.
Answered on Mar 25th, 2013 at 2:53 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Once the principal under the power of attorney dies, the power terminates. So the executor now has control of the estate
Answered on Mar 25th, 2013 at 2:53 PM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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Durable power of attorney is only valid while principal is living. Executor of Will is after death.
Answered on Mar 25th, 2013 at 2:53 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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No, as a Durable Power of Attorney is operative during life, and dies on death, whereas an Executor becomes operative after death in a will.
Answered on Mar 25th, 2013 at 2:52 PM
2 Awards
If the person who signed the documents is still living the POA is effective. If the person who signed the documents is deceased, the will is the controlling document. If the persons are 2 different people, the living or deceased status controls who is in charge.
Answered on Mar 25th, 2013 at 2:52 PM
Estate Planning Attorney serving Provo, UT
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Randy M. Lish, Attorney at Law
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No. The Durable Power of Attorney ceases to be effective when a person dies.
Answered on Mar 25th, 2013 at 2:52 PM
All authority established by a Power of Attorney ends at the time of death. An executors authority begins after death.
Answered on Mar 25th, 2013 at 2:51 PM
Estate Planning Attorney serving Torrance, CA
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The Law Office of Kelvin Green
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Powers of attorney cease at death. Executors administer estates after death. There will e no conflict.
Answered on Mar 25th, 2013 at 2:51 PM
Litigation Attorney serving St. Louis, MO
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Probate Law Center Richard J. Keyes, PC
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A durable power of attorney is void upon death, except that a health care power of attorney can have language as to donating organs and disposal of the body. The executor of a will cannot act until appointed by the probate court. Therefore, there should be no conflict.
Answered on Mar 25th, 2013 at 2:50 PM
3 Awards
No. The power of attorney does with the maker.
Answered on Mar 25th, 2013 at 2:50 PM
Thomas Edward Gates
No, The Power of Attorney ends when the principle dies. At that point, the Executor handles the estate once appointed by the court.
Answered on Mar 25th, 2013 at 2:50 PM
General Civil Trial Practice Attorney serving Oklahoma City, OK
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Denker & Associates, PLLC
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1 Award
A Durable POA is only valid while the maker is alive. An Executor of a Will does not have any authority or power until the maker is deceased and the Executor has been approved by the probate court
Answered on Mar 25th, 2013 at 2:49 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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No conflict. The agent under the POA has no authority upon the death. The executor's authority starts at that time.
Answered on Mar 25th, 2013 at 2:49 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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They are two different things. A power of attorney grants authority to another person to make decisions and act for the person who grants the POA. The POA ceases when the person who granted it dies. An executor is the person who handles the estate of a decedent, and makes sure that the decedent's assets are properly distributed.
Answered on Mar 25th, 2013 at 2:49 PM
2 Awards
No. A power of attorney dies with the power grantor. An executor of a will has no power under the will until the death of the testator (person who wrote the will.) That being said, both the power holder under the POA and the executor are fiduciaries. This means that the power holder and executor must put the interests of the power grantor/ estate in front of their own interests.
Answered on Mar 25th, 2013 at 2:49 PM
Estate Planning Attorney serving Marquette, MI
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The Wideman Law Center, P.C.
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No the durable power of attorney has authority when the person is alive only, and the Executor has authority after the person dies if they have a Court order appointing them.
Answered on Mar 25th, 2013 at 2:48 PM
No. Once a person dies, the power of attorney ceases to have any effect. The power of attorney only works while one is living. Once a person dies, his/her will or trust controls and the power of attorney has no effect.
Answered on Mar 25th, 2013 at 2:42 PM
A power of attorney is only good as long as the grantor is alive. Once he passes, the will will control.
Answered on Mar 25th, 2013 at 2:41 PM
Probate Attorney serving Palatine, IL
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Law Offices of Robert H. Glorch
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No. Executor doesn't start until after death. Agent under POA ends at death.
Answered on Mar 25th, 2013 at 2:41 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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No. The Power of Attorney is void after the principal passes away. Once the will is submitted for probate, the personal representative is in control (that's the term for executor now).
Answered on Mar 25th, 2013 at 2:41 PM
No. A Power of Attorney only has validity during the life of the principal, the person making out the document. The Will only takes effect upon the death of the Will maker.
Answered on Mar 25th, 2013 at 2:40 PM