Book an appointment using SetMore

Who has power of attorney after death if there is no will?

In Texas, you cannot get a power of attorney to act on behalf of another person after he or she has died. Rather, you would need to obtain this power of attorney before the person passing away. However, even then any power of attorney that is in existence would then become null and void once that person more to pass away. Therefore, if you are the power of attorney for another person that individual would not be able to provide to you any authority in this regard once they pass away. Basically, in Texas, the power of attorney document is only viable when that person is alive. 

With all this being said, you or another person are still going to have to be able to handle that person's affairs and his state after their death. Sometimes it ends up being you as the person who formerly held the power of attorney rights. However, it is also possible that another person could fulfill this duty I'll behalf of your deceased loved one or friend. Suppose that your mother just passed away than before her passing you were named as the person holding power of attorney rights over him or her. You were the person that she trusted the most to take care of their affairs and perform basic functions for him or her while he or she was alive.

Bear in mind that the rights conveyed in a power of attorney can range from the ability to pay bills on behalf of that person 2 being able to buy or sell the property. It truly is a rather diverse set of Another person to name you as someone who can engage in these types of endeavors. Someone who names you as their agent places a great deal of trust in you. The question that you need to ask yourself is after their passing whether or not you should be paying their bills or closing out accounts on their behalf. It would seem only natural to do so given that you have power of attorney and have been likely doing these things on their behalf for some time.

However, as you probably surmised by this point you cannot and should not continue to do so as the power of attorney has no validity after your loved one has passed away. The only exception to this statement would be if your loved one has also named you as executor of their estate in their will Or if you have gone through probate and were named administrator of their state if your loved one passed away without a will. From stances, you would be able to continue to act in this capacity on behalf of your loved one.

What happens when there is a will in place?

Once your loved one passes away he or she is no longer able to own property. Therefore, when a will is in place for your loved one you must go through the probate process to transfer their property to any errors that are alive. In the above example, your mother's will must be filed with the probate court after she passes away. This is especially true if she held a bank account or any property in their name alone. If your father is still alive then it is he would need this probate process to go through so that he could become the owner of the account.

The probate process is designed to be able to distribute your mother's property to their beneficiaries. In Texas, Community property laws would dictate that Community property is to be transferred to your father while separate properties are to be divided between your father and you or any of your siblings. As the executor of your mother's will, it would be your job to ensure that the probate process is followed and their property is distributed correctly.

What happens when there is not a will in place? 

Even if your mother's will were to have passed away without a will, their property must still go through the probate process to transfer ownership correctly. The biggest difference between the probate process when there is a will in the probate process when there is not a will is a Texas probate code will determine how the process follows as far as distributing property to heirs. Whereas if your mother had a will property would be distributed according to the terms of the will. This is where the term executor comes from. You would have been executing on your mother's wishes had she passed away with the wheel.

This is why the court will appoint you as an administrator to settle your mother's estate if she dies without a will. For you to be named as administrator you would apply to the probate court to be appointed as the administrator. It will be an easy decision to name you as an administrator were your mother to pass away without a spouse or if your father and other siblings would agree to have you named as administrator. In addition to talking to your mother before her passing about creating a will it will be wise immediately after her passing to speak with your father and siblings about who should act as his administrator or she to pass away without having a will drafted. 

Regardless of whether or not your mother passes away with the will, the probate court must grant permission and authority to someone to act on that deceased person's estate to you or another person who could have also been The person who held the power of attorney rights. You are then named as executor or administrator of the estate or will he would still be able to act as you did under the power of attorney capacity. This is true at least until ownership rights are transferred to another person. 

What happens to the power of attorney after the death of a loved one?

Once your loved one passes away the power of attorney document essentially is useless. That's true it serves no purpose and confers no authority on you or anyone else to act on behalf of your deceased loved one. Your loved one is no longer able to own any property therefore you cannot handle any matters related to that property because he or she can no longer handle the property.

Bear in mind that the power of attorney may give you some degree of authority to make final transactions from a financial perspective for your loved one. However, he or she would still no longer be able to own property or the money over which the power of attorney placed you in charge. At that point, your loved one's estate would own the property or money. Therefore, only the executor or the administrator of a state or will would be able to deal with these issues during the probate process. 

Finally, the vast majority of banks and other financial institutions will freeze the accounts of any deceased person once they learn of their passing. This freeze would remain in place until an executor or administrator contacts them after the probate process has begun. At which point if you tried to use your power of attorney in any capacity as you had when your loved one was alive you would be told that it would not be effective any longer. 

Are there any exceptions to the rule that the power of attorney no longer applies once an individual passes away?

If a loved one of yours passes away then it may be useful to know that very small estates typically do not require that you go through the probate process. Alternatively, your loved one may have thought ahead and utilized a living trust as their estate planning vehicle rather than a will. In this case, a living trust would bypass the need for you to probate there are states. Any trustee would be able to take over your loved one's affairs thus saving you the time, money, and effort of going through the probate process. Either way, the power of attorney in which your name as an agent would no longer be relevant.

What else is relevant when it comes to the power of attorney documents and probate matters after the death of a loved one?

What happens if your parent's bank account or other property is not included in the probate estate. Could occur where the property is left out of probate by mistake or on purpose? What would the possible reasons for doing this be and does anyone stand to benefit from not having certain property or accounts kept in the probate process? The first thing we should talk about here is that probate is only required for assets that their parents were to own in their name. For example, if there is a bank account with your mother and father's name on it and then your mother was to pass away the account would not have to go into probate because your father would be able to continue to have access to the account just as he did before your mother's passing.

With any other type of account, however, the probate process would be necessary because you would need Ding to transfer the property from your mother to your father. I have seen some families have a separate bank account we are only household bills are paid out of. In that case, that account has only your mother's name on it you would need to go through probate to have the account transferred legally over to your father. However, there is a relevant exception here if this was payable on the death account. For example, your mother could have chosen to name your father as the person who would receive the contents of the account once she passed away. It is conceivable that this could have been set up this way if her mother knew that she was passing such as if she had terminal cancer that she had been fighting for some time.

Let's assume a situation where your mother listed you as the co-owner of her bank account. In some cases, your elderly mother may have even listed you as a co-owner of her home on the deed. You would this be entitled to a right of survivorship claim to the property where you would have a life estate in the home if not full-fledged ownership rights depending on what was in their will. In situations like this, the bank account or home would pass automatically to you at their death. You would not need to go through the probate process to transfer ownership.

In this scenario that I just described to you, you would have ownership of the property but would not be legally responsible for paying your parent's debts out of any money that you inherit after their passing. This is because the probate process will see to it that all creditors are paid and all bills are caught up to speed with the account closed. Bear in mind, however, that if you acted as a cosigner on any credit accounts or loans that your mother took out that you are now legally responsible for those payments separate and above anything having to do with your mother. Acting as a cosigner is a risky move and places you in a position of liability if the principal Bauer borrower cannot fulfill their legal obligations under the terms of the loan.

Is there a property in Texas that is not impacted by the laws of intestate succession? 

Intestate succession is a fancy, a legal term that is used to describe a situation where a person dies without a will and the law needs to determine who gets what out of that person's estate. The Texas probate code administers circumstances like this and will determine how the property is divided up between possible errors. Most typically, when a person dies their spouse, children and relatives would receive property in descending order based upon how close they are 2 the person who has died. Spouses and children usually have first dibs with extended family receiving portions of property if there is no spouse or children to inherit property.

With that said, I did want to share with you some information on what property of yours or a loved one can pass to beneficiaries without having to go through the probate process or adhere to any of the laws regarding Community property, intestate succession, or anything having to do with the probate code. First, the proceeds of life insurance can bypass probate and go to the correct person without any involvement of a probate court. If you have a life insurance policy in place with a named beneficiary there would not have to be any involvement with the probate court in that case. You would simply have to have a copy of the life insurance policy available for a loved one to see and to notify the life insurance company of your passing. A certificate of death would likely have to be sent to the life insurance company for the proceeds repaid out to your beneficiary.

Next, retirement funds like individual retirement accounts or 401K's do not have to go through probate to be paid to the intended beneficiary on most brokerage account websites you can select a beneficiary or even a secondary beneficiary for these accounts. No additional work would have to be done but it would be wise to notify your intended beneficiary that they are named as such on these accounts. That way at least someone will think to look through these accounts on your behalf or you to pass away suddenly.

As we mentioned earlier, payable on death bank accounts or another simple measure that you can employ to ensure that bank accounts you own do not have to go through probate. As such, what you would need to do is go to your bank and let them know you'd like to set up a payable on death account for yourself. Once you have followed your bank's procedures to do so this is another account that would not have to go through probate or you to pass away. The person who is the beneficiary of this payable on death account would contact the bank with a certificate of death to access the account.

As you can tell, there are many facets to probate law and intestate succession. The first thing I would tell you is that it is easiest and best for you to have a will rather than to worry about how all these works were you to pass away without one. Even though you will be gone at this stage it will make life much easier for your friends and family. They will be able to grieve your loss appropriately and not have to worry excessively about who gets what and how to take care of your affairs. Even with the will, a portion of your property may have to go through probate. In this case, it is recommended for you to have experienced probate in estate planning attorney by your side. 

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we talked about in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.

Sign Up Here to Download Our eBook!

Fill out the form below 
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.