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If a living spouse grants Power of Attorney to someone else does the decedents assets still have to go through probate?

Columbia, SC |

Mother is wanting to grant power of attorney to me since father passed away. Would father's assets still have to go through probate now or when mother passes away?

Attorney Answers 3


Yes-because they would be in deceased person's name.
POA's are void upon death and cannot be assigned.

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.

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It depends on how your father's assets were titled when he passed away.

If any of his assets (such as a home and bank accounts) were titled in both his and your mother's names, as joint tenants with right of survivorship, then those assets will pass directly to your mother without the need for probate. Similarly, if he had any life insurance policies/IRA or 401(k) accounts with named beneficiaries, those proceeds should be distributed directly to those beneficiaries without the need for probate.

The POA that you will have over your mother's property will only be in effect while she is alive, and will expire automatically upon her death. At that point, when a probate estate is opened, the person appointed executor (or personal representative) is the person tasked with distributing the her property according to either her will or state law.

When she passes, any assets she owns in her own name, including anything that she held jointly with your father, will be distributed according to her will (assuming she has one). If she does not have a will, her probate estate will be distributed according to the laws of the state in which she resided. In any event, her estate (and your father's estate, for that matter) would be administered by a personal representative appointed by the probate court.

I strongly suggest that your mother hire an estate planning/probate attorney to make sure that any estate documents and powers of attorney she is considering executing accurately reflect her wishes.

Hope this helps.

This answer is in response to a general legal question and is intended for informational purposes only. It does not constitute legal advice. Use of this website and its e-mail link does not create an attorney-client relationship with Attorney Mekdsy. Messages with confidential information should not be sent to Attorney Mekdsy via the e-mail link. The information provided in this answer must not be used as a substitute for consulting with an attorney. Brian Mekdsy is licensed to practice law in the Commonwealth of Massachusetts only.

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Your situation is not entirely clear, because you have not included much information. Your "father's assets" either need to be probated NOW, or they will never need to be probated. If everything he owned was joint with his wife or named her beneficiary, then it now all belongs to her. That is the most common way for married people to hold title. If that was the case, then no probate will ever be needed for your father. Your mother DOES need to make sure that HER estate planning is in order, so you can avoid probate upon HER death. A POA is a good start, but more will be needed, depending on the assets and your mother's objectives.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

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