Do I need probate if I have power of attorney?

Although they might seem similar, probate and power of attorney are two different things with different legal requirements.

Even if you have power of attorney during a person’s lifetime, you might still need to apply for probate when they die.

We’ve explained the difference between the two and when you might need probate.

Power of attorney vs probate: what’s the difference?

Power of attorney applies during a person’s lifetime, allowing a person to appoint somebody else to handle their affairs while they’re unable to.

If you have power of attorney, you’ll have various responsibilities depending on the type of agreement, which may include managing their money and property and making financial decisions on their behalf. This agreement legally ends when the person has died.

At this point, the responsibility to manage and distribute their estate passes to the executors in their will.

The executor must then prove they have the legal right to deal with the estate by applying for a grant of probate. The process of obtaining this grant is also known as probate.

It’s common for power of attorney and probate to fall to the same person. But this makes no difference to whether or not probate is needed, because power of attorney no longer applies after a person’s death.

When is probate required?

Whether or not probate applies will depend on a few factors.

Firstly, if you’re applying to deal with the estate as an ‘administrator’ rather than an executor, you might need to apply for letters of administration instead.

This might be the case if there was no valid will, no executors were named, or if the named executors were unable or unwilling to act. There are strict rules about who can apply to be an administrator in this situation, but generally speaking, the responsibility goes to the deceased’s next of kin.

Secondly, the requirement for probate will depend on the assets the person owned when they died.

You’ll usually need probate if the estate includes property like a house, flat, or other significant assets.

You might not need probate if:

  • cash and personal possessions make up the estate
  • all the property in the estate is owned as beneficial joint tenants – this property automatically goes to the other owner
  • you had a joint bank account
  • the amount of money in the estate is small
  • the estate is insolvent (there’s not enough money to pay all the debts, taxes and expenses)
  • the estate includes certain life insurance policies and pension benefits.

We can help

Applying for probate and acting as executor of an estate can be complicated and stressful to deal with, especially during a time of bereavement.

We can handle probate on your behalf, making the process as smooth and painless as possible, and answering any questions you have along the way.

Get in touch to find out more.

DISCLAIMER

The information provided is of a general nature. It is not a substitute for specific advice in your own circumstances. You are recommended to obtain specific professional advice from an appropriate professional before you take any action or refrain from action. Whilst we endeavour to use reasonable efforts to furnish accurate, complete, reliable, error free and up-to-date information, we do not warrant that it is such. We and our associates disclaim all warranties. The information can only provide an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice.

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