January 29, 2021
I get several calls a month from people saying that they don’t understand why they need to probate their mom’s estate (or their spouse’s, dad’s, brother’s, sister’s estate) because before they died their mom signed a Power of Attorney naming them as their mom’s agent. Or, even worse, they call and say they’ve already taken care of their deceased loved one’s estate using the Power of Attorney.
What they don’t realize is that a Power of Attorney ends the moment the Principal dies. If your mother signs a Durable Power of Attorney naming you as her Power of Attorney agent, then you may act for her benefit while she is living, even if she is in a coma. You can sign contracts in her name, you can typically open and close her bank accounts, you can buy and sell real property in her name (as long as the Power of Attorney document is on file with the County Clerk where the property is located). But the moment your mother passes away, the Power of Attorney is no longer valid. You cannot go to the bank right after your mother passes away and transfer her money to yourself. That is self-dealing, fraud, and carries with it severe civil and criminal penalties.
The Executor or Administrator is the person that takes charge of your mother’s estate. In some cases, that may be you too. If your mother named you in her Will to be her Executor, then you will apply to the Probate court to be named Executor. If you are appointed Executor, you will be able to transfer assets in your role as Executor, but not as a Power of Attorney Agent.
An easy way to view the process is that a Power of Attorney Agent acts for your mother’s benefit while she is living, and the moment she passes away the Power of Attorney ends, and the Executor takes over the management of her estate. You may be both the Power of Attorney Agent and the named Executor in the Will, but until the Probate Court appoints you Executor, you are powerless and the estate is limbo.
It’s best to contact an attorney before you transfer any assets using a Power of Attorney as self-dealing and embezzlement charges can be levied against you even when you are acting with the best of intentions.
Blaise Regan is a Partner at Regan & Frisbie, PLLC, a law firm focusing on Wills, Trusts, Probate, Contracts, Business Formations (LLC, Corporation, S-Corp Designation), Business Disputes, and Consumer Litigation.
Regan & Frisbie, PLLC is located at 7160 Preston Road, Suite 100, Plano, Texas 75024.
Comments or questions, feel free to email him at Blaise@RFPlawfirm.com or call him at 469.200.4737.
*Nothing in this Article is to be considered as the rendering of legal advice for specific cases, or creating an attorney-client relationship, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and informational purposes only, and no warranty or representation is made as to the accuracy or completeness of the information contained herein.