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DO I NEED A WILL IF I HAVE POWER OF ATTORNEY OVER MY MOM'S ESTATE?

King George, VA |

I have a sell as home that a company wants to buy but when I went to closing the company wanted to know if their was a will. Why would they want a will if I have power of attorney if my parent's both are deceased

Attorney Answers 6


  1. A durable POA is only valid during lifetime if the person granting the power. When the granting party passes, so to does a durable power of attorney. You need to consult with an attorney to determine what you do and don't have.

    NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. DO NOT RELY ON ANY ADVICE YOU RECEIVE FROM ME OR ANY OTHER ATTORNEY IN THIS FORUM. Legal advice comes after a complete review of the facts and relevant documents and an expressed (written) agreement of representation that forms attorney-client confidentiality. Neither of these two events can occur in this forum. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. His answers to any Avvo question are rooted in general legal principles--NOT your specific state laws. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this or any other matter.


  2. The power of attorney ended at death. If there was a will, that would determine who now owns the home. If there was no will, the ownership of the home would be determined under the intestate (no will) laws of the state. Either way, a probate court will need to enter an order. You need to hire an attorney to assist you.

    The above answer is not to be considered legal advice and should not be relied upon as such. You should consult your attorney for specific legal advice as to your individual situation.


  3. As noted by counsel, a power of attorney dies with the person who executed it. It is highly likely that the property is part of one or both of your parents' estates (depending on titling) so you will need a probate court procedure in order to transfer it. Please retain an experienced estate administration attorney to provide assistance. Good luck to you.

    This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.


  4. POA is void upon death.
    Probating of the will is necessary for you to have legal authority
    to sell home.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  5. All of the attorneys who have answered your question are correct.


  6. A power if attorney terminates upon the death of the person who signed te Power of Attorney. A Will might be relevant depending on how the house was titled and what the Will says. However, a Will is not typically necessary to transfer real estate after death in Virginia. If your parents both died without a Will, then the real estate probably passed to the heirs at law of the second-to-die spouse. If that is the case, you will need to contact the probate office in the Circuit Court of the County or City of death (or the County or City where the real estate is located) and file a Real Estate Affidavit / List of Heirs. This document, once recorded in the probate office, will establish who owns the property and therefore who has the right to sell it.

    Evan H. Farr can be reached at 703-691-1888 or at http://www.farrlawfirm.com. Evan is Certified as an Elder Law Attorney by the National Elder Law Foundation, which is approved by the American Bar Association, but Virginia has no procedure for approving certifying organizations. NOTICE - Unless expressly stated otherwise, this communication: (1) is not legal advice absent an existing attorney-client relationship between us; (2) does not create an attorney-client relationship; (3) does not constitute an offer, acceptance, or contract amendment; (4) may contain confidential or legally privileged information protected by the attorney-client relationship and/or work product privilege; (5) is only for the use of the individual to whom it is intended by the sender to be sent, and if you are not such recipient, disclosure, copying, distribution or reliance upon this communication is prohibited; and (6) is not intended, and cannot be used, to avoid tax-related penalties pursuant to treasury department circular 230.

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