As a power of attorney, you are in a unique position of trust to handle someone’s personal estate and assets whilst they are still alive because they might not be able to do so themselves, as per the Mental Capacity Act. But a question that often arises is: do I need probate if I have power of attorney?
The simple answer is yes. Read on to find out why you need probate if you have power of attorney, how to apply, and what support we can offer you.
What is power of attorney?
A power of attorney is when someone chooses another person to handle their affairs, estate and make decisions for them whilst they are still alive. This is made official with a legal document, and the person chosen is called an attorney.
Whether you are a lasting power of attorney, or enduring power of attorney (appointed before 2005), the person giving power of attorney must write and legalise the document when they fully understand what it means, and the power of attorney stops when the person who made it dies, unless the document specifies a different time.
You can appoint anyone you want to be your attorney, and any administrator who is entitled to their estate can have their own attorney.
What is probate?
Probate is the official process of making sure a deceased person's will is valid and followed. It involves getting legal permission and authority to deal with someone’s assets, like their property, money, and possessions (their estate) when they pass away. The person in charge of this process, often named in the will, is called the executor.
Before applying for probate, you are required to check that you’re eligible to apply, that probate is indeed needed, and if there is any inheritance tax to pay.
You might not need probate if the person who has passed away only had savings; owned shares or money with other people (as this passes to any surviving owners unless agreed differently); owned land or property as ‘joint tenants’ with others (again, this passes to the surviving owners).
If there is a will, the executors named in the will can apply for probate. If there isn’t a valid will, then this authority passes on to the closest living relative to the deceased who must apply.
So, what about inheritance tax? When you apply for probate, you will need the value of the estate which you can estimate using the right knowledge and resources. This will guide you and tell you if you need to pay Inheritance Tax.
After doing this, you can apply for probate online or by post.
There are differing rules to probate in Scotland and Northern Ireland, so be sure to read the rules carefully if this applies to your circumstances.
Need support? Let us help you find an experienced solicitor for your probate application.
Power of attorney and probate
Power of attorney and probate serve different roles, and it’s important to know the difference.
Having power of attorney for someone doesn't mean you can skip probate when they pass away. The power of attorney deals with their affairs while they're alive, but this ends when the person dies.
After their death, the responsibility for their estate goes to the executors named in the will or, if there's no will, to their closest living relative (called the administrator for probate). These individuals need to prove they have the legal right to handle the estate, which is done through the probate process. It ensures the right person is in charge of the deceased person's belongings and finances.
Can an attorney also be an executor of a will?
Legally yes, it's fine for someone who's been given power of attorney (attorney) to also be the person in charge of carrying out the wishes in a will (executor). Both rules hold a position of trust, and appointing the same people can keep things straightforward and free from potential confusion.
However remember, to be the executor, you must be named in the will.
Do I need to apply for probate if I have power of attorney?
Yes - as covered earlier in the article, having power of attorney gives you the right to manage the affairs of a person whilst they are still alive, however after they have died, this right moves to the executor of the will.
So, even if you have power of attorney for someone, you will still need to apply for probate after their death to legally manage their assets and make sure that their assets are properly distributed.
Expert probate solicitors at Lawhive
At Lawhive, our wills, trust, and probate solicitors are here to help. For personalised advice and support, contact our legal assessment team for a free case assessment today.