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Does durable power of attorney work after death?

I have a couple of bank accounts that I share with my wife and that's about it. The car is in both our names. I have a durable power of attorney which I was told by my attorney would allow my wife to manage any other financial matters after I'm dead. My wife says the durable power of attorney does not work that way though. I thought the power of attorney would allow her to wrap everything up without having to go through probate. Can you explain?

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Submitted Wed, 12/11/2013 - 10:23

A durable power of attorney (in fact, any power of attorney) ends at death. With a power of attorney, the agent is acting on behalf of the principal as if the principal were acting themselves. The principal can't act if he or she is dead, so neither can the agent. It is possible (and hopefully the case) that the attorney told you that a durable power of attorney allows your wife to act even if you are INCAPACITATED (in a coma, mentally unstable, etc.) but still alive.

A simple will solves the "after death" problem. Wills not only say who gets your property but also designate a personal representative for your estate.

However, if all of your assets are owned jointly, then there is no need for probate at all because title will pass completely to your wife upon your death (and vice-versa). But if you have assets that will not pass automatically to your wife, you may wish to consider a simple will. Even in that instance, however, a will may not be a necessity (even though it is good practice) because your wife will have priority to be the personal representative anyway and (unless either of you has children outside the marriage) she would be entitled to your property.

I would recommend a will even if you're sure everything's fine. A lot can change over the years (including one spouse dying before the other) that can throw everything off. You can name successors to be personal representatives, guardians for any children, and who gets what property in the event your spouse dies before you.

Either consult your attorney or feel free to call me at 617-859-8966. Good luck!


Attorney Hemingway is correct.  Any probate assets that you have at the time of your death will become part of your estate and will be managed and distributed by the Personal Representative in accordance with your estate plan (such as a will, if you have one).  If you have no estate plan, then the laws of intestacy apply.  You will notice that I mentioned probate assets.  You can read about the difference between probate and non-probate assts.  However, the bottom line is that, after your death, if all of your assets were jointly owned by your wife, then there may be nothing to manage.  For example, if you own a bank account jointly, then it becomes her property after you die without any legal process, such as probate.  Good luck.

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