Do I need probate if I have Power of Attorney?
If you’ve held a Power of Attorney (POA) for someone, you might be wondering whether that means you still need probate when they pass away. In short: yes. A POA does not replace probate. Once someone dies, the Power of Attorney ends, and legal responsibility shifts to the Executors or Administrators.
What is Power of Attorney, and when does it end?
A Power of Attorney (often a Lasting Power of Attorney in England and Wales) allows someone (the Attorney) to manage financial, property, or health decisions on behalf of another person (the Donor) while the Donor is alive and still has capacity.
The crucial point is this: once the Donor dies, the POA loses all legal effect. Attorneys can no longer act under it. After death, the POA provides no authority over any assets or matters of the person who has died.
When probate becomes necessary
Probate is the legal process that gives authority to someone (called an Executor, or an Administrator if there’s no Will) to manage the deceased’s estate. This includes gathering assets, paying debts, and distributing inheritances.
Even if you were the attorney under a POA, you must usually apply for probate if the estate holds property in the deceased's name, bank accounts, or investments that are not jointly held, or other assets that require legal permission to transfer.
Can a former Attorney become an Executor?
It is possible for someone who holds a POA to also be named as Executor in the Will. If so, once probate is granted, that person switches roles from Attorney (which ended at death), to Executor (with new legal authority).
But, being an Attorney does not automatically make you an Executor. You need to check whether the Will names you or someone else, and then follow the probate procedure accordingly.
Practical steps if you were an Attorney
- Confirm the person’s death and obtain a death certificate.
- Check whether you are named as Executor in the Will.
- If you are the Executor, apply for the Grant of Probate.
- If no Will exists, apply for Letters of Administration.
- Gather all documents about the assets, debts, and liabilities. This often includes bank statements, property deeds, policies, etc.
For a full list of Personal Representative responsibilities, read here.
Why do people get confused?
Many believe that a POA gives ongoing authority after death, which is not the case. Some think that because they managed affairs before death, they can continue to do so. However, the law requires a Grant of Probate or Letters of Administration to handle the estate properly and to comply with tax, property, banking, and legal requirements.
Final thoughts
If you have, or had, Power of Attorney, understand that it only applies while someone is alive. You still need probate to deal with their estate after they have died, unless all assets are jointly owned or otherwise exempt. Even as a POA, you must follow the legal steps to administer the estate properly, whether as an Executor or Administrator.
