Is a Power of Attorney still in effect after the person dies?

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Is a Power of Attorney still in effect after the person dies?

I have a durable power of attorney for my mothers medical and financial affairs. My father passed away 2 years ago and there is no Will, living trust or estate planning in effect. I would like to know if I can transfer the title on his house to myself and siblings to avoid probate.

Asked on September 8, 2010 under Estate Planning, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

A Durable POA becomes invalid when the Principal dies. It cannot be used to bequeath property upon the death of the Principal.

Generally Speaking, when a person dies, the "Executor/Personal Representative" appointed in the person's Will takes control of the deceased person's property and distributes it according to the terms of the Will. If there is no Will, then the deceased is said to have died "intestate" and the intestacy laws of the state where the deceased resided at the time of their death will control the process of distribution of the estate. The way this works is that the probate court appoints an "Administrator" to oversee this process.

Depending on the size of the estate (under $100,000) you may be able to avoid a formal probate by filing for a small estate administration affidavit. Contact the clerk of the probate court (in the county where the deceased legally resided at the time of their death) for more information.


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