Who Has Power of Attorney After Death If There Is No Will?
A power of attorney (POA) is an important mechanism that can protect you and your estate, primarily when you can’t act in a legal capacity to make decisions about your finances or medical care. There is often confusion about how long a POA lasts or what happens if you don’t have a Will in place before you die. This article clarifies what a POA is, when it goes into effect, and what happens if you pass on without a Will.
Understanding Power of Attorney
A power of attorney (POA) is not a person but a legal document that gives someone you designate the authority to make medical or financial decisions on your behalf. This could occur if you become incapacitated or too ill to make prudent legal decisions. It could also be that you are living or traveling abroad and can’t handle your affairs locally. Although you have the authority to name your POA, an attorney experienced in Wills can guide you on choosing the best person for this role.
The individual to which you delegate POA should be someone you know well and trust. Upon your death, the person you assign as POA no longer has decision-making authority regarding your estate.
What Happens to the Power of Attorney Role After Death?
The POA for your estate is no longer valid once you die. In this case, the person granted POA must stop acting in this capacity immediately. Continuing to act as a POA agent puts that person at odds with estate law. It’s considered an abuse of POA and could be criminally prosecuted. Even if you are still alive, the person with POA can still misuse their role, such as moving assets or property from your name to theirs, which is called inheritance hijacking.
What If the Decedent Didn’t Have a Will?
When a person dies without a Will, they are said to have died intestate. If this is the case, the probate court will appoint an administrator to manage the estate, which may be an individual who applies to serve in this role. In distributing assets and settling the estate, the administrator will likely, but not always, prioritize the surviving spouse or other close relatives per Ohio’s intestate succession regulations.
Another consequence of not having a Will is that your estate will typically go into probate. This means the court—not you or a surviving family member—will determine the distribution of assets or transfer of property ownership. Even hiring a local Will and Trust attorney won’t completely remove the decision-making power from the court.
How Will the Estate Be Settled?
A person who is not a surviving spouse or adult child can apply to be the administrator of a decedent’s (deceased person’s) estate. In Ohio, a prospective administrator must be a resident of Ohio. The judge usually grants the request if the decedent has no surviving family members and if the likely beneficiaries support the application. It’s sometimes the case that potential beneficiaries will challenge a prospective administrator’s application.
An executor or administrator typically carries out the instructions outlined in a Will. When the decedent dies intestate, the administrator settles the estate and distributes the assets per the probate court. In either case, the administrator must report to the court and verify their compliance with the law when resolving the estate. They can also turn to probate and estate guidance from a law firm to make sure they stay legally compliant.
Protect Your Future with Estate Planning
Designating a POA ensures you retain complete control of what happens to you and your estate if you can no longer communicate your wishes. Upon death, however, the POA is no longer in effect, so having a Will guarantees that your assets are distributed according to your wishes. At Donnellon, Donnellon & Miller, our probate and estate counsel can help you develop a Will, delegate a POA, and create a comprehensive estate plan that gives you and your family peace of mind.