Tom McCutcheon – Attorney at Law
Q: My husband and I have a survivorship will and a durable power of attorney typed and ready to sign before a notary public. We have two children and they are equally named in the will and power of attorney. Our reasoning for the power of attorney is that if one or both of us became incapacitated then there would be someone who would be able to make decisions for us regarding health problems, finances, etc. Do you have to probate a will when you have a power of attorney signed by both parties?
Peggy
Tuscumbia, AL
A: First of all, I am glad to see that you have taken the time to get your priorities in order with regards to your future. There are some things, however, that you need to know regarding Last Wills and Testaments and Power of Attorneys.
Power of Attorneys and Wills perform distinctly different functions and come into play at different times. A power of attorney allows the “grantor” to convey to another person the power to act on their behalf in the making of financial and medical decisions during a time of incapacity. A power of attorney ends immediately upon the death of the grantor. When the grantor passes away, the power of attorney is no longer valid and therefore of no use.
A Last Will and Testament comes into effect immediately upon the maker’s death. A Last Will and Testament has no power or effect until an individual’s death. A person’s Last Will and Testament conveys the individual’s wishes for the dispersal of their property after death.
From your question, I want to make sure that it is understood that both you and your husband need a separate will. Make sure that the will is signed by two witnesses and a notary to ensure that it is a “self proving” will. Wills, as well as powers of attorney, are services that our office provides.
So in answer to your question, yes, you would need to probate the will upon the death of the person in order to facilitate his or her last wishes.
Buckle up and drive safely.
**As a side note, McCutcheon & Hamner is helping to sponsor The Tru Freedom Riders Annual Labor Day Event in Florence on September 3rd and 4th to raise money (with your help) for The Tru Freedom Riders who donate bicycles each year to local children. We are going to bring a motor home we will be there to write wills for people who make a donation of $25.00.**
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630
Telephone: 256-764-0112
Facsimile: 256-349-2529
