Does a power of attorney automatically become executor of an estate, if the deceased in question has no written will?

Question

Person D, unfortunately, is deceased, and does not leave a written will, nor any particular indication as to who should be executor of their estate.

Before the death of D, person A is provided with sole power of attorney due to ill health.

None of the descendants or close relatives of D disagree with the appointment of attorney, nor do they have fault with the concept of A becoming executor of D's estate. However, the latter – A being executor – is not formally stated.

My question is: is it legally assumed that a sole attorney may become sole executor of an estate, in similar circumstances? If not, who in this case would the executor become? Is this a grey area?

I imagine this situation can occur worldwide in places with similar legal concepts, so any jurisdiction is welcome (though I am writing under my understanding of the law in united-kingdom).

Answer 1

Powers of Attorney die with the principal

Once the subject dies, they are null and void.

For a person who dies intestate, the next of kin can apply to the court for an Administrator (not an Executor) to be appointed. This may be a person all the beneficiaries agree on or it may be a government public trustee.

Answer 2

Speaking for Germany, no. In the absence of a written will the "Nachlassgericht" (probate court, apparently) takes care of the "Nachlasssachen", which as I understand it covers what in English is referred to as executing the estate (determining the size of the estate, finding persons entitled to parts of the estate etc.).

The only exception I can think of is that power of attorney allows you to conclude running affairs (paying owed bills, cancelling contracts etc.). For that purpose, power of attorney usually extends beyond death.

Answer 3

united-states

A POA ends when the principal dies, that is the person who granted the power, in this case D. It does not automatically make A the representative of the estate. This is true in each of the US states, and in the UK, and I think most other countries.

If there is no will, the probate judge appoints someone to be an administrator (not executor, although the job is much the same) to handle the estate under the rules of intestacy. If the is a will but the person named as executor is dead, or unwilling or unable to serve in that role, the judge appoints an executor.

Often the judge appoints a close family member, although if the estate is large, and particularly if it contains an active business, the judge may appoint a professional instead. The judge has wide discretion on who to appoint in either case. The judge is supposed to appoint a person who will act to follow the wishes of the deceased (in the case of a will) and the law, and will treat all people involved fairly.

That A held a POA from D might incline the judge to appoint A, if there is no better person to chose, but there is no rule to that effect. The duties of a POA holder may be rather different from those of an administrator or executor, depending on the nature and extent of the estate.

Answer 4

Does a power of attorney automatically become executor of an estate, if the deceased in question has no written will?

No. Even in states where that person may have priority to be appointed as executor, this requires a separate application to be appointed and is not automatic.

At common law, authority under a power of attorney as a power of attorney agent terminated at the moment of death automatically by operation of law. Under a common statutory reform of that rule adopted in Colorado and some other states, however, a power of attorney agent's authority is not terminated until the agent learns of the power of attorney principal's death.

In U.S. states that have adopted the estate administration provisions of the Uniform Probate Code (not many), the priorities to be appointed to administer the estate as a personal representative (a.k.a. executor) are as follows (using the numbering of Colorado Revised Statues § 15-12-203(1), which is one such state):

Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:

(a) The person with priority as determined by a probated will including a person nominated by a power conferred in a will;

(b) The surviving spouse of the decedent who is a devisee of the decedent;

(b.3) The surviving party to a civil union entered into in accordance with article 15 of title 14, C.R.S., who is a devisee of the decedent;

(b.5) A person given priority to be a personal representative in a designated beneficiary agreement made pursuant to article 22 of this title;

(c) Other devisees of the decedent;

(d) The surviving spouse of the decedent;

(d.5) The surviving party to a civil union entered into in accordance with article 15 of title 14, C.R.S.;

(e) Other heirs of the decedent;

(f) Forty-five days after the death of the decedent, any creditor.

Under that statute, a holder of a power of attorney does not have any priority by virtue of having been a power of attorney agent.

A civil union is a (usually) same sex relationship equivalent to marriage, a status created before same sex marriage was legalized. A "designated beneficiary" is someone given the inheritance and incapacity related rights of a surviving spouse to someone who isn't a spouse or civil union member, to the extent that a more specific document does not provide otherwise.

Many other U.S. states have a similar list of priorities under this question governed by state law.

This said, someone who does have priority to be appointed as personal representative or executor, and is subsequently appointed, can ratify actions taken before appointment if they are in the best interests of the probate estate, and has limited authority to stabilize the property of the estate (e.g. making sure that doors to buildings are secured or that cattle are fed) pending appointment not longer thereafter.