Yes. Executors can appoint someone with the power of attorney, just like any other person, but you may find that it isn’t particularly useful during probate and estate settlement. And if it is necessary or convenient, you should probably give that authority to a probate lawyer instead of a friend or family member.
Also, if you’re wondering if executors can give someone power of attorney on behalf of the deceased, no. Power of Attorney almost always ends at death.*
Key Takeaways:
- Appointing a family or friend to handle parts of estate settlement via power of attorney could increase your liability
- For most things, power of attorney is not enough to act on behalf of an estate anyway
- Out-of-state executors can get help communicating with the correct probate court by assigning or hiring what is known as a resident process agent, or RPA
- States have different requirements for out-of-state executors and RPA's
Why executors should be careful when appointing someone with the power of attorney
Executors, executrices, and personal representatives often need help during probate. And that’s fair — with hundreds of steps, a year’s worth of work, in $14k+ in expenses on average*, it’s really tempting to let family and friends help. This is especially true in cases where the executor lives in a different state than the deceased’s domicile (permanent residence).
Delegating to non-professionals during probate can increase your liability
The thing is, appointing someone who isn’t a probate lawyer can increase your liability. You, as the executor, are responsible for settling an estate properly. No one else. So if you have a friend act on your behalf, and they make a mistake, they won’t be on the line — you will.
For example, if you told your friend to file notice to creditors on the estate’s behalf, but they didn’t do it correctly, and years later a creditor demanded their money, you may be on the hook if things weren’t handled correctly.
The point? This is too important of a task to delegate to casual friends and family members, even if they want to help. If you’re overwhelmed, it’s better to hire a professional probate lawyer. That’s what most people do, plus you have a fiduciary obligation to hire qualified people to help.
Power of attorney usually isn’t enough
When you are appointed executor after filing the will (if it exists) and/or petitioning the court to initiate probate, you are given what are known as letters of administration or letters testamentary. These “letters”, which are just a formal document signed by the local probate court, give you as executor the authority to manage the deceased’s assets. Banks, credit unions, and various other institutions require you to have these letters when accessing and taking control of assets.
Therefore, many times, even if your friend or family member wanted to help and had power of attorney, it still wouldn’t matter.
Now, people could potentially help, subject to court approval, with various tasks such as selling assets, taxes, etc., but if you have enough for it to be a headache, you should hire probate professionals anyway.
If you are an out-of-state executor, you may have to appoint a resident process agent
Another aspect of this to consider is that if you are in a different state from where the deceased was domiciled, you may even be required to appoint a resident process agent (RPA). This is essentially a legal liaison between you and the probate court managing the estate’s probate process.
Because a local or state court’s jurisdiction doesn’t extend past state lines, when they need to force an executor’s hand or communicate with them, they sometimes require or prefer an out-of-state executor to appoint an RPA.
Imagine if an executor, executrix, or administrator just stopped communicating with the probate court and beneficiaries. They would need to be served by the local sheriff, but there is no way they are going to drive across state lines to serve someone, so they just serve the RPA in person on the executor’s behalf.
These considerations are why states have rules around out-of-state executors. Generally speaking, RPAs need to be:
- 18+ years of age
- Must live in the state where the estate is being probated
- Should be generally responsive, available, and reliable. E.g. Cannot be planning to be out of the country for months.
- Must not be a felon or have any other convictions/charges
Note: it is most common for probate lawyers to double as RPAs for out-of-state executors
There are 28 states with specific rules for out-of-state executors.
To see that list, go here: States with Specific Resident Process Agent Rules
The bottom line on executors giving people the power of attorney
Giving someone the power of attorney can help in some situations, but in the vast majority of aspects of estate settlement situations, having a probate lawyer, resident process agent, or doing it yourself is the fastest and most efficient way to get through probate.
