Do I need probate if I have power of attorney?
14 July 2021
The fact that you had power of attorney during someone’s lifetime doesn’t have any bearing on whether or not probate is needed after they die. Whether probate is needed will depend on what the person owned when they died owned.
What is power of attorney?
When someone appoints another person to deal with their affairs and make deicisons for them, this is called giving them power of attorney and this is done through a legal document. The appointed person is called an attorney.
There are different types of power of attorney, but they all have two important things in common:
- The power of attorney document must be made by the person who's appointing the attorney, while they are fully able to understand it
- The power of attorney ends when the individual dies (or when specified in the document)
Power of Attorney and Probate
Power of attorney and probate are two very different things. This can cause a lot of confusion, and we often hear people say that they don’t need probate because they had power of attorney for the person who died. However, it doesn’t work like that.
Think of it this way – power of attorney deals with events that happen while your loved one is alive, and will no longer have effect when they die. So while you may be responsible for your loved one’s affairs during their lifetime, this will end at the moment of their death.
After their death, responsibility for the estate passes to the executors named in the will. Or if there isn’t a valid will in place, to the deceased’s closest living relative (who for the purposes of probate is called the administrator).
The executor or administrator must prove that they have the legal authority to deal with the estate. To do this, they must go through the probate process. This ensures that the correct person is administering the deceased person’s estate.
Power of attorney and executor
The person who had power of attorney may well be the executor or administrator of the estate. This is quite common, as often the person trusted to deal with someone’s affairs during their lifetime is the person trusted to do the same after their death.
But even if you had power of attorney and you now find yourself as the executor or administrator, probate may still be needed. This is because your loved one has now died, and you need to get the legal authority to deal with their estate. It doesn’t matter that you previously had authority to make decisions on their behalf, as it’s not the same thing.
So the fact that you had power of attorney has no influence over whether or not probate is needed. Instead, this will depend on what assets the deceased owned, and whether these assets were owned in their sole name.
If your loved one has died and you’re not sure whether or not probate is needed, our probate advisors can tell you.
*We can also pay all the costs of a Co-op Funeralcare funeral, providing the Estate owns sufficient assets which can be sold in due course to repay our costs.