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Does a durable power of attorney, replace what is written in a will?

San Diego, CA |

My uncle had apparently given durable power of attorney to a neighbor lady. My father had been attempting to contact him, with no answer. She also ignored calls from my father. We just found out from Social Security, that my uncle had been dead for almost a year. My father states that he had seen a will about 10 years ago. We are wondering how to find out if the will had been changed, allowing her the rights to all of his real estate property, etc. or if she automatically gets all of his assests because she was POA. Just some guidance on where to go from here. He was living in San Diego, CA and we are in Nebraska.

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Attorney answers 2


No a durable power of attorney ceases to be effective at the time of his death. However, that may not have stopped her from transferring things before he died.

You will have to file a Petition to be appointed Administrator of his estate and then go out and investigate what happened to his property. She has little or no standing in the matter.

Good luck.

I practice in NY so check with a CA lawyer.


The power of attorney died with your uncle. ("Durable" means it is still good after incapacity, but not after death.) The poa would not replace the Will unless the agent under the poa diverted all the assets to herself before your uncle died. Then there would be no assets to pass under the Will. I know of one case where the agent conveyed all the property to himself after the principal died, without disclosing that the principal had died. Unless some interested party (relative, beneficiary, creditor, IRS) shows up to contest unauthorized actions, people can get away with things that aren't authorized.

A will is supposed to be filed with the County Clerk within 30 days of someone dying. If it is not so filed, whoever had custody of it may be liable to someone who is damaged by not filing it.

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