Who Has Power of Attorney After Death if There’s No Will?


If you recently lost a friend or loved one, then you’re probably more focused on grieving your loss than dealing with the estate. However, there are certain legal matters that need to be dealt with, and the situation is more complicated if the deceased neglected to grant someone power of attorney or appoint an estate representative before their passing.

At JacksonWhite Law, we understand that the probate process can be frustrating and emotional for all involved. Our goal is to properly take care of the process while minimizing inconvenience for family members and loved ones. This article explains power of attorney and who has it in the event that there’s no will when someone passes away.

What Is Power of Attorney?

A legal term, power of attorney grants an individual known as the agent the right to act for another person, referred to as the principal. Depending on the case, a principal may appoint an agent to make decisions about their finances, legal rights, healthcare needs, or all of the above. The rights granted to an agent may be broad (such as handling all business transactions) or narrow (like selling a home).

As a principal, you have the right to establish a durable or nondurable power of attorney based on your goals. If you grant an agent durable POA, they retain power even if you become incapacitated by an illness or injury. For nondurable POA, an agent’s rights expire when if the principal becomes incapacitated.

Individuals who hold power of attorney should note that banks and other financial institutions generally freeze a person’s accounts upon their death. In other words, you will no longer be able to use your power of attorney rights if the principal is no longer living. Institutions don’t remove the freeze until after the executor contacts them and says the estate has been resolved. At this point, property can be distributed to beneficiaries and heirs.

What Is an Estate Representative?

Power of attorney is only valid when the principal is still alive. After an individual passes, their estate representative or executor will be responsible for legal decision-making and distributing property to heirs. If the decedent failed to appoint an executor, the court will appoint one for them. In most cases, spouses and close family members are assigned the task of serving as a will’s executor.

Why You Need a Will

If you don’t currently have a will, you might want to consider speaking to an estate planning lawyer about how best to convey your final wishes to the court. Not only does making a will ensure that your property will go to the beneficiaries and heirs you choose, but it also saves your friends and loved ones from the stress of making decisions about your estate when they’re grieving. Here are some of the reasons that everyone needs a will:

Distributing Property

You have the right to decide who should control your property after you’re gone. By making a will, you can determine which property and belongings should go to your spouse, children, family, friends, and even pets. Additionally, you can request that sums of money be given to various charitable organizations or groups.

Choosing an Executor

Creating a last will and testament enables you to select someone to serve as executor. This person will be responsible for distributing your money and property according to the tenants of your will after your estate has gone through probate.

Note that your estate will still need to pay off creditors and settle any outstanding debts or tax bills before the executor can make distributions. By choosing an executor yourself, you also save friends and loved ones from having to make this decision after you’re no longer there.

Avoiding Escheat

If someone dies without a will, the state will generally pass their property on to their spouse. For unmarried individuals, property and money pass to children and then to other relatives, including grandchildren, parents, grandparents, and siblings.

In rare cases, someone may die who doesn’t have a will or living family members to inherit. Under these circumstances, their property will “escheat” into the state’s account. While this outcome is rare, you can avoid it by creating a last will and testament that makes your wishes plain.

JacksonWhite Can Help You Navigate Probate

Probate attorney Ryan Hodges is an experienced and highly regarded, and has helped hundreds of families navigate the probate process in Arizona. Contact our office below to get help with your case.

Call our Probate team at (480)467-4365 to discuss your case today.

Contact Probate Attorney Ryan Hodges

Call (480)467-4365 or fill out our contact form to schedule your consultation and discuss your best legal options.