An executor may face challenges from the family while probating an estate. A question might even arise regarding what authorities the decedent’s power of attorney has to make decisions.
Understanding the differences between the two roles can clear up confusion on the issue.
What is a power of attorney?
Someone uses a power of attorney to grant another person authority to act as a personal representative or agent. The document should specify the limits of this authority, which can be restrictive or liberal.
A durable power of attorney grants a person (known as the “agent” or “attorney-in-fact”) the right to make specific decisions for someone (known as the “principal”), even when the principal is unconscious or lacking mental competency. For example, the document can permit the agent to pay bills, sell property, sign checks and file taxes.
A power of attorney remains in effect while the principal who authorizes it is alive. At death, such powers cease because the agent has no living person to represent.
What does an executor do?
The probate court assigns an executor (or an administrator when there is no will) to oversee the process of probate. The individual will handle the assets left by the decedent, pay debts and taxes, notify government agencies of the death, and ultimately distribute the estate assets to the beneficiaries.
The agent with a power of attorney cannot officially interfere except by making a legal challenge through the courts. Because the agent operates on behalf of a living person and the executor represents the estate of a decedent, the roles cannot overlap.
The probate process cannot begin until the court appoints a personal representative. The agent under a power of attorney can also serve as the executor or administrator of the estate, but this would not alter the distinction between the two duties. The agent’s powers cease completely when the principal dies and the personal representative’s powers begin when the court appoints the personal representative.
What if something needs to be done after death but before an executor is appointed?
In some cases, the duties of an agent under power of attorney may be pressing and there may not be enough time to wait for an executor to be appointed by the court. Although California law requires that a personal representative have a hearing to be appointed within 45 days of petitioning the court, the reality of our backed up court system means that in practice it often takes several months for an executor to be appointed. What to do if the agent under a power of attorney can not access funds to pay ongoing expenses (like a mortgage or property taxes) while awaiting appointment as the executor or administrator of the estate? The solution is to obtain limited authority from the court by petitioning for letters of special administration. This is an expedited process where the court may appoint a “special administrator” to take limited authorized steps in order to avoid damage to estate assets, such as foreclosure, tax penalties, or other consequences of allowing estate matters to languish unaddressed.
An experienced probate attorney will know how to navigate the court system to get you authority quickly and avoid the negative consequences that could arise in the period between the decedent’s death (when a power of attorney becomes inoperative) and the appointment by the court of an executor to manage the estate.