Do I need Probate if I have Power of Attorney?
When the person dies, the Power of Attorney ends.
Example
With the help of his solicitor, Joe has written a Will and Powers of Attorney.
| Will | Power of Attorney | |
|---|---|---|
|
What do we call Joe? |
Testator | Donor |
|
What do we call the people |
Executors | Attorneys |
|
When can Joe’s chosen people |
When Joe has died | [Depends on the Power of Attorney] |
|
What happens when Joe dies? |
Executors can start dealing with finances right away |
Attorneys must stop dealing with finances right away |
Joe’s Power of Attorney is, specifically, a Lasting Power of Attorney. He has chosen his brother Bob and his friend Harjinder as the Attorneys. Joe’s solicitor has registered the Lasting Power of Attorney so that it can be used right away.
Bob and Harjinder are also Joe’s Executors in his Will.
When Joe dies, Bob and Harjinder should stop using the Lasting Power of Attorney. They now
“switch hats” from Attorneys to Executors. As Executors, Bob and Harjinder might need to apply for
Probate before they can carry on dealing with Joe’s finances. This will depend on lots of different
things like the value of Joe’s estate and whether anybody is challenging his Will.
When they were Attorneys, Bob and Harjinder put Joe’s best interests first. But now that Joe has
died, Bob and Harjinder must think about the best interests of the beneficiaries in Joe’s Will.
Bob and Harjinder could go back to Joe’s solicitor for help with Probate (if it’s needed). The Lasting
of Power would need to be cancelled as part of the Probate process.
But what if Joe had chosen different Executors in his Will; not Bob and Harjinder but Sue and Naomi?
Sue and Naomi might need help from Bob and Harjinder to understand Joe’s finances. For example, did Bob and Harjinder use the Power of Attorney to make gifts on Joe’s behalf, during his lifetime?
In summary, Executors and Attorneys are very different roles. A Power of Attorney cannot be used
instead of Probate.
Cancel my Will
There are different ways to cancel (or “revoke”) your Will. Some ways might be accidental, like not realising marriage can revoke a Will. Other ways might be more deliberate, like “burning, tearing or otherwise destroying” the Will (section 20 Wills Act 1837). Last year, in the case of Crew v Oakley, a hospitalised lady wanted…
Do I need Probate if I have Power of Attorney?
When the person dies, the Power of Attorney ends. Example With the help of his solicitor, Joe has written a Will and Powers of Attorney. Will Power of Attorney What do we call Joe? Testator Donor What do we call the people chosen by Joe? Executors Attorneys When can Joe’s…
Undue Influence: The Case of the Isolated Mother
In 2021, Mrs Daphne Jones signed a Will in which she named her daughter – Ceri Jones – sole Executor and Beneficiary. But when Mrs Jones died, the Court refused Probate to Ceri because they discovered that she “increasingly isolated her mother from other members of the family”. That isolation was “substantially complete” by the…
Solicitors vs Plastic
If a solicitor writes your Will, are they going to use plastic unnecessarily? Ask them if they plan to put a plastic cover on the front of the Will or perhaps use a plastic spine to hold it together. Don’t be afraid to challenge your solicitor on environmental issues. You might be the one that…
Inheriting an ISA
Did you know..? When a person passes away, their surviving spouse/civil partner’s ISA allowance may increase? For that particular tax year only, the amount that the survivor can pay into their own Individual Savings Account gets “bumped up” (depending on how much the deceased had in their ISA). This is known as the Additional Permitted…
Dormant Assets
Think about all of the assets you’ve owned throughout your life. Perhaps your home, bank and building society accounts, personal items, a car, Premium Bonds, shares, investments and pensions. When you die, it will be your Executors’ legal duty to find out what you owned so that they can make truthful tax declarations and properly…
The Case of the Fraudulent Attorney
In 2014, a man called Brian Malam was appointed as an Attorney for his friend, Mrs Margaret Wright. Mrs Wright had dementia and was living in a care home. Using the Power of Attorney, Mr Malam stole £65,000 from his vulnerable friend through a combination of bank transfers, direct spending and cash withdrawals. After he…
The Tale of the Executor who Buried his Head in the Sand
In September this year, the England and Wales High Court ordered the imprisonment of Mark Totton for three months because he deliberately ignored a Court Order requiring him to fulfil his duties as the late Hazel Totton’s Executor. Mr Totton sold the deceased’s house for £425,000 in April 2020 but had not given the Beneficiaries…
Brothers, sisters and Inheritance Tax
Generally when one spouse dies and the other inherits, there is no Inheritance Tax to pay on that transfer. This is called the “Spouse Exemption”. Parliament is debating whether something similar should apply to transfers between siblings, in certain circumstances. You can track the process of the proposed legislation here.