Do I Need Probate if I Have Power of Attorney?
If you have power of attorney, does that mean you need probate? We understand that there can be confusion around probate and power of attorney, but we’re here to break it down.
Power of attorney and probate are well-known legal terms in the UK, but many seem to get the two mixed up. Not to worry - we’re here to help! To find out whether you need probate if you have power of attorney, continue reading.
What is Power of Attorney?
Power of attorney is a legal document granting an individual (known as an attorney) permission to handle someone's affairs while they’re alive. This allows the ‘attorney’ to make decisions on behalf of the ‘donor’ if they can’t do so themselves. In most cases, this includes making money and healthcare-related decisions. Power of attorney ends when the person who made it dies.
What is Probate?
Probate is a legal process in the UK, granting an individual (often the executor of the Will, or an administrator if a Will doesn’t exist) the right to manage someone's affairs after death. This includes collecting their assets, such as money, personal belongings, and property.
Before managing a deceased person's estate, you must be granted probate. To be granted probate, you must be eligible. The process of being granted probate can take up to 12 weeks from when the application is sent to the Probate Registry, but this can be longer if there’s misinformation or holdups.
Power of Attorney vs Probate: The Key Differences
It’s easy to understand why probate and power of attorney get mixed up. While the two involve authority to handle another individual's affairs, they are not the same. Let’s find out more about the key differences.
| Power of Attorney | Probate |
|---|---|
| Allows you to manage a person's affairs while they are alive | Allows you to manage a person's affairs after they die |
| An attorney is appointed by a donor | An executor is named in the Will |
| Ends as soon as a donor dies | Begins after someone dies |
| To assist someone who can't handle their own affairs | To ensure the deceased's estate is distributed correctly to the beneficiaries |
| Power of Attorney documentation is required | Grant of Probate documentation is required |
Can an Attorney Also be an Executor of a Will?
Yes, you can be power of attorney for someone while they are alive, and also be an executor on their Will. In the UK, it’s common for individuals to be the power of attorney and a named executor in a Will. Being both power of attorney and an executor can help streamline the process after death, allowing you to continue managing someone's affairs when they’re no longer here.
So, Do You Need Probate if You Have Power of Attorney?
Yes, you need probate even if you have power of attorney. Regardless of whether you have power of attorney, you must still be granted probate to handle a deceased person's affairs.
As mentioned, power of attorney is only valid while someone is alive, and immediately ends when they pass away. To further manage their affairs when this happens, you must apply for probate to gain legal authority again.
Applying for Probate After Having Power of Attorney
Once power of attorney ends when your loved one dies, you must apply for probate. This will permit you to continue handling their affairs after death:
- Determine if you are eligible for probate (the executor of a Will typically applies for probate)
- Gather relevant documents for the application
- Complete the application through the Probate Registry
- Apply online or by post
- Wait to be granted probate
While you may feel that you have the right to handle the deceased's assets after being power of attorney when they were alive, you must follow the processes in place and wait to be granted probate before acting further on someone's behalf.
Key Takeaways
- Power of attorney and probate are not the same
- Power of attorney ends on death
- You must apply for probate even if you have power of attorney
- You can be power of attorney for someone while they are alive and be an executor on their Will
Dedicated Power of Attorney and Probate Solicitors
At Bell Lamb & Joynson, we offer services regarding power of attorney and probate. You can rely on us for expert services at all times. Our dedicated power of attorney and probate solicitors can go through all the information you require throughout the process, ensuring you understand what being power of attorney means - even after death.
We can also help manage probate, taking the tedious administrative tasks and legal paperwork out of your hands. With over 200 years of experience, you can rely on our friendly and professional team to assist you in all areas.
To chat with either of our power of attorney or probate solicitors, please contact us today.