Do I Need Probate if I Have Power of Attorney?
10 November 2017
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 their death. If the deceased owned assets in their sole name and their Estate is worth over a certain amount, you will need to go through the Probate process.
What is Power of Attorney?
A Power of Attorney is a legal document that allows an individual (called the Donor) to appoint another person to deal with their affairs should they become unable to do so themselves. The appointed person is called an Attorney, and will have the legal authority to make decisions on the Donor’s behalf.
There are different types of Power of Attorney, including Ordinary Power of Attorney, Enduring Power of Attorney and Lasting Power of Attorney. They all have two important things in common:
- They must be made by the Donor during their lifetime, while he/she has mental capacity
- They end when the Donor dies (or when specified in the document).
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What is Probate?
Probate is the legal process someone must go through to get the legal authority to deal with a deceased person’s Estate, which is the collective term for everything the deceased owned.
Probate is not needed every time someone dies. For example, Probate won’t be necessary if the deceased owned all their assets jointly, and these assets are passing to someone who is still alive. Probate also won’t be required if the deceased owned very little.
When a loved one dies, you’ll need to find out if Probate is needed. If it is, their assets cannot be distributed to the beneficiaries until a Grant of Probate has been issued by the Probate Registry (or Grant of Letters of Administration, if there is no Will).
With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the Legal, Tax (excl VAT), Property and Estate Administration affairs*.
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 he/she dies. 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.