In the estate planning attorney process, who has the power of attorney after death if there is no will?

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In the estate planning attorney process, who has the power of attorney after death if there is no will?

Power of attorney: what is it?

Let’s first talk about what a power of attorney is, and then we’ll talk about whether it still holds after someone passes away. An individual can authorize another person to act on their behalf by executing a power of attorney (POA), a legal instrument. The “principal” or “donor” is the one who is granting the authority, while the “agent” or “attorney-in-fact” or “donee” is the one who has been given the command. Powers of attorney come in a variety of forms, and they can vary from one another depending on several criteria, including the purpose of the POA, its duration, the scope of the authority granted by the POA, etc. So who has a power of attorney after death if there is no will? 

Do power of attorney remain in effect after death per the estate planning attorney process?

Unfortunately, a power of attorney expires once the principal passes away. When the principal cannot handle their legal affairs, a POA allows the agent to act on the principal’s behalf. However, after the principal passes away, the agent renounces this power because they can no longer serve as the principal’s representative.

When Does a Power of Attorney Terminate?

A power of attorney expires legally under the following conditions:

  • When the principal passes away
  • Only in the case of a durable power of attorney when the principal is rendered unable
  • When the principal has nullified the power of attorney
  • When a power of attorney specifies that it will expire after a specific date or when a particular event occurs
  • When the power of attorney’s objectives have been fulfilled
  • When the principal expressly revokes the authority granted to one or more of the agents
  • When the agent passes away, becomes incapable of acting, or resigns, a power of attorney does not designate a replacement agent to carry out the agent’s duties.

As a result, in the event of any of those above, the agent will not be able to act on behalf of the principal in any way. The POA is also revoked in the last scenario unless someone else has been designated to step in in the event of the agent’s death, incapacity, or resignation.

What Takes Place Following the Principal’s Death?

When the principal dies, a power of attorney expires, and the will is carried out in its place. The executor of the will is now in charge of carrying out the principal’s instructions through the choice, not the agent. As a result, the agent loses all authority to act on behalf of the principal unless they are also designated as the will’s executor. If the principal has not named an executor of their choice, the court appoints a person to serve in that capacity.

What if a Will doesn’t exist?

There may be unfinished business that must be examined when the principal passes away. They may also have assets that need to be divided. Any existing POA terminates at the principal’s death, and the principal’s will governs how this happens. What happens, though, if the principal doesn’t leave a choice?

The probation process will still apply to the principal’s assets if they pass away without a will. Therefore, the purchases must be examined and validated accordingly. After that, by the applicable legislation, the state will give the principal’s heirs.

What distinguishes a will from a power of attorney?

By now, it should be evident that a power of attorney expires following death. If any subsequent activity is done on behalf of the principal, it will be replaced by a will. What distinguishes the two documents, then?

The first is the variation in execution times mentioned several times. When the principal is conscious but unable to act on their behalf, a power of attorney will be employed. They choose an agent to work in their place as a result. On the other hand, a will doesn’t take effect until the principal has passed away. The executor of the will now have the authority instead of the agent. 

When the principal cannot handle their affairs, a power of attorney will require assistance managing financial, real estate, tax, and other legal decisions. However, the principal makes their desires written in their will on how their affairs should handle.


A power of attorney is a crucial legal document that gives you peace of mind. Your financial and other legal affairs will be handled in the event of your physical absence. However, a power of attorney’s continued legality has been revoked upon death. Therefore, it is advisable to create a will to guarantee that all your assets will be evenly distributed even after your passing.

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