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Do I need Probate if I have Power of Attorney?

Our People - Andrew Guile
17 May, 2024

In most cases, yes. Having a power of attorney does not eliminate the need for probate. A power of attorney is only valid during the donor’s lifetime. Therefore, once they have died, the attorney no longer has any powers. Once the principal dies, their assets become part of their estate, and the executor or personal representative of the donor’s estate may need probate to collect-in those assets and distribute them properly.

Power of Attorney vs Probate: Key Differences

When someone passes away, their loved ones are often left with numerous emotional and legal responsibilities. Two terms that frequently arise during this process are ‘power of attorney’ and ‘probate’. Although they might sound similar, they are very different and understanding these differences is crucial.

What is a Power of Attorney?

A power of attorney (known in England & Wales as a ‘Lasting Power of Attorney’) is a legal document that allows someone (the donor) to appoint another person (the attorney) to make decisions on their behalf. This can cover a wide range of matters, including financial decisions, medical care, and property management. Importantly, a power of attorney is only valid while the donor is alive. Once the donor passes away, the attorney’s authority ends.

There are two main types of Lasting Power of Attorney (LPAs):

  • Lasting Power of Attorney for Property and Financial Affairs: This LPA allows the attorney to manage the donor’s financial affairs, such as bank accounts, investments, and property. It is particularly useful if the principal becomes incapacitated and unable to manage their finances.
  • Lasting Power of Attorney for Health and Welfare: This LPA permits the attorney to make decisions about the donor’s health and medical care and treatment if they are unable to do so themselves. This may include consenting to medical procedures or choosing a care facility.

What is Probate?

Probate is a legal process that oversees the administration of a deceased person’s estate. Specifically, a ‘grant of probate’ is a court order issued by the Probate Registry granting the power to the personal representatives to administer the deceased’s estate. The probate process involves identifying and valuing assets, settling debts, and distributing remaining assets according to the will or, if there is no will, according to intestacy laws.

A grant of probate provides legal authority to the executor (named in the will) or administrator (appointed by the court) to administer the deceased’s estate. Generally, probate is required for estates with substantial assets or property held solely by the deceased.

Does a Power of Attorney end when someone dies?

Yes, a power of attorney ends upon the donor’s death. The authority granted by the power of attorney is only valid while the donor is alive. Once they pass away, the power of attorney ceases to have effect.

Why does a Power of Attorney end when someone dies?

A power of attorney is a living document intended to manage situations where the donor is unable to make decisions due to illness, incapacity, or other reasons. It is designed to address ongoing financial and medical needs while the donor is alive. After death, these responsibilities shift to the deceased’s estate, and the power of attorney is no longer valid.

What if the deceased was subject to a Deputyship?

Having a deputyship in place does not affect the need for probate. Similar to an LPA, a deputyship and probate serve distinct purposes. A deputyship is established by the Court of Protection to manage the affairs of someone who lacks the mental capacity to make decisions while they are alive. Probate, however, deals with administering the deceased person’s estate.

The deputy appointed by the Court of Protection is typically responsible for notifying the Office of the Public Guardian (OPG) and the Court of Protection about the death of the deceased. If the deputy created an inventory of the principal’s assets while managing their affairs, it could be helpful during the probate process.

Contact an experienced Probate or Power of Attorney Solicitor

If you would like any help or advice on any issues relating to Probate or Lasting Powers of Attorney, please do not hesitate to contact one of our experienced Probate Solicitors or specialist Power of Attorney Solicitors. Alternatively, please get in touch on 020 8492 2290.

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