Tom McCutcheon
Q: I am the Executor of my mother’s will and she has gone into the nursing home and the bank said I couldn’t handle her business without a power of attorney. Why would I need a power of attorney when I am over her estate?
Dalton
Athens, AL
A: The executorship begins at death and the power of attorney ends at death. One is for handling another person’s business while they are alive and the other is to carry out their wishes as expressed in their will after they have passed away. For those people who die without a will, an administrator is appointed who administers the estate of a person who dies intestate (dies without a will).
That leads me to point out that wills are inexpensive and everyone should have one. A simple will provides that everything goes to the surviving spouse and then to the children. These wills usually mirror one another and really never need to be rewritten except in cases where remarriage occurs.
If a person dies without a will the law provides that the administrator of the will shall be, if willing to serve, first, the surviving husband or wife and the second choice is the next of kin entitled to share in the estate and state law provides that the third choice is the largest creditor of the estate. The administrator must furnish a bond in an amount sufficient to satisfy the court at a cost to be deducted from the estate which is an unnecessary expense and is waived by those making a will.
If you want to be able to perform business related tasks such as writing checks and signing other legal documents while a person is alive you must have a power of attorney from the person for whom you are acting. These documents can allow any legal act that the person could perform if present or a power of attorney may limit a person to a specific task such as handling a loan closing.
The executor is named in a will. A will does not become effective until death. Therefore the executor may not act in a legal capacity until after the will is admitted to probate. At that time the executor is given letters testamentary by the court and they are then able to perform certain legal tasks carrying out the wishes of the decedent (person who died) in conformity with their wishes as expressed in their will.
Buckle up and drive safely.
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630
Telephone: 256-764-0112
