To understand better, an attorney is a person who has been given the power of attorney.
Basically, a power of attorney is a legal authorization given to a specific person to act on behalf of someone else.
Conversely, an executor also has a form of control over one person’s property.
Thus, an executor and an attorney, at times, can clash in the course of fulfilling their duties.
But does the power of attorney override an executor?
In this article, we shall discuss the meaning and the role of an executor.
By the end of this article, one should be able to gauge whether a power of attorney can override an executor.
Does the Power of Attorney Override an Executor?
In order to answer this question, we will briefly mention the work of a power of attorney.
A power of attorney is a document that gives an attorney the authority to make decisions on behalf of another.
Inter alia, these decisions majorly involve a person’s personal finances, property, or health status.
To note is that the person who gave the power of attorney is the principal, whereas the person to whom the power of attorney was given is the agent.
Therefore, once a principal dies, in most cases, the power of attorney will expire.
What then happens when power of attorney expires?
Upon the expiry of a power of attorney by way of the death of the principal, the work of an agent will come to an end.
Thus, this creates a grey area in the law. For example, a person’s estate can go to waste since the work of the attorney is over.
However, if the deceased had left a will, then the executor can implement it.
Sometimes, an executor can be a person who was an attorney.
If you are in a case where the deceased had not left a will, then it is crucial to consult an estate litigation attorney.
So, who is an executor and can the power of attorney override an executor?
An executor is a person who is responsible for carrying out the instructions left in the will of a deceased person. An executor can be anyone worthy of trust such as a family member, friend, lawyer, or bank.
In addition, one can also name more than one executor or name a successor executor in case the first one is unable or unwilling to serve.
Executors will mainly represent the deceased estate for the probate process.
The main task of an executor will be handling the property of a deceased person and executing their will.
As stated above an attorney or an agent’s work will end upon the death of a principal.
Therefore, a power of attorney cannot override an executor.
So, what is the work of an executor?
- Filing a will with the probate court. This process happens when an executor files a petition to initiate the probate process using the deceased person’s death certificate.
- Locating and collecting all your assets. This process involves consolidation of the deceased’s assets for purposes of determining the real value of the deceased’s estate.
- Paying off all your debts and taxes from the deceased’s estate accounts.
- Distributing the remaining property to heirs or beneficiaries of the deceased. This process is known as executing the will of the deceased once the probate process is complete. In some cases, the deceased will have bequeathed their property to minors. Therefore, it will be the work of the executor to manage and hold the deceased property in trust until the minors can be able to legally inherit their share.
- Closing one’s estate
How Do Power of Attorney and Executor Differ?
The main difference between an agent with power of attorney and an executor is that one represents you while you are alive, and the other represents your estate while you are dead. The two roles do not intersect at any point. This means that:
- Your agent cannot make any changes to your will or override your wishes
- Your executor cannot access or control any assets that are not part of your estate
- Your agent’s authority ends when you die, and your executor’s authority begins when you die
Therefore, power of attorney does not override the executor, and vice versa. They are both important parts of your estate plan that serve different purposes.
How Do Power of Attorney and Executor Work Together?
Although the purpose that a power of attorney and executor serve is different, they can work together to ensure that your affairs are handled smoothly and efficiently. For example:
- Your agent can help prepare your estate for probate by organizing your documents, paying off your debts, and transferring your assets to the appropriate accounts
- Your executor can consult with your agent about any matters that may affect your estate or beneficiaries, such as pending lawsuits, claims, or disputes
- Your agent and executor can communicate with each other and with your family members to avoid any conflicts or misunderstandings
By choosing the same person or compatible people to serve as both your agent and executor, you can reduce the risk of confusion or inconsistency in the management of one’s affairs.
An attorney and executor are two distinct roles that have different responsibilities and authorities.
It is, however, the task of an executor and an attorney to act in the best interest of an estate.
A power of attorney cannot override an executor since the work of an agent ends upon the death of a principal.
Divergently, the work of an executor begins upon the death of a principal.
Thus, the two roles can never override or conflict with each other.
Instead, they complement each other to protect the interests of the principal while they are alive and after their death.
By creating a power of attorney and a will, you can appoint someone you trust to act on your behalf in various situations. This person can double as the agent/attorney as well as the executor.
This way, one can have peace of mind that their wishes will be respected and their estate will be distributed according to their plan.