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

UPDATED: Sep 8, 2010

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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


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

Answered 12 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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