A power of attorney and a will are two very different documents, and even when one person is appointed as both someone’s agent and their executor, the tasks that each position entail are very different as well. In the state of California, you can choose to have the same person take on the role of both agent and executor or split the responsibilities between multiple people.
While a power of attorney gives one or more specified individuals the right to act as a legal representative in certain ways, and grants them the authority to say and do things in your name (within set limitations), an executor’s job only begins when you pass away, and they have no power while you (the testator) still live.
When considering a power of attorney or a will for your estate planning needs, it is important to distinguish the differences between each document and better understand how they both benefit you in life and in death.
Understanding the Power of Attorney
The power of attorney is a legal document that grants someone limited authority to act on your behalf (as your “agent”) within the scope of the document. A power of attorney can be built to certain specifications, limiting the agent’s power, or granting them sweeping authority to act in your name.
However, all forms of power of attorney are only valid if you are alive. Some examples of what your agent might be able to do include:
- Manage your bills
- Sell your real estate
- Pay your mortgage
- Handle business transactions in your name
- Sign checks in your name
- Handle assets such as stocks and investments
- File your taxes
- Make medical decisions on your behalf
The limitations set in place for an agent depend entirely upon you and how you decide to word the document that grants them such powers. You may, for example, only grant them the power to handle your retirement accounts, and only for a set amount of time between two determine dates. Or, you may give them the authority to make medical decisions in your name, but not financial ones (and vice versa).
A power of attorney document is typically only valid if the principal (you) remain mentally fit to make such decisions yourself. If you are mentally or physically incapacitated, most power of attorney documents do not give an agent the right to make decisions in your name.
As such, for estate planning purposes, it is typically recommended to create a durable power of attorney. This type of agreement stipulates that your agent may represent you even when you are not in good health, mentally or otherwise. It goes without saying that in any case, a power of attorney is not to be taken lightly, and the sweeping powers that may be given to someone else over your own life and finances must be considered very carefully.
Should you die, a power of attorney agreement is voided. Your agent cannot act in your name or represent you legally when you are dead.
Executor of a Will
A last will and testament is a very different document from a power of attorney, and the testator (you) cannot grant anyone the power to execute it once you pass away. While the contents of your will are critical, and your personal choice of executor/administrator heavily affects the final decision, it is the county’s probate court that ultimately decides who administers your will and distributes your estate after you have died.
The executor of a will is a person typically suggested by the testator within the will as an administrator for its execution. It is their job to oversee the process of distributing all assets within the will and dissolving the estate, beginning with the initiation of the probate process itself. Your chosen executor will be tasked with:
- Creating a petition for probate
- Taking stock of the estate
- Receiving the authorization to execute the will by the probate court
- informing creditors of your passing (via newspaper, usually)
- Gathering and taking inventory of the entire estate
- Determining its value at the time of death via a professional assessment
- Ultimately overseeing the distribution and dissolution of the estate as per the will
Executors are chosen by the probate court, which provides oversight throughout the entire process, and have no power until a probate court grants it to them. And because the probate process does not begin until after the death certificate is notarized and the will is legitimated, they effectively do not have the power to do anything while the testator of the will is still alive.
There are exceptions wherein an agent goes against the principal’s wishes as defined in their will, if that will was kept secret. It is important to note that the language used when writing a power of attorney document is incredibly specific, and when working with a legal professional, you will often be asked to very clearly define what your agent can and cannot do. Communication is also vital. Agents within a power of attorney are also bound by California law to assume the “fiduciary and legal responsibilities of an agent”.
But if an agent is not sufficiently informed of what the principal’s wishes and best interests are, things can get complicated. If you feel confused or have been in a difficult situation due to a conflict between a power of attorney and a will, it is critical that you consult a legal professional.
Amending a Power of Attorney or a Will
As principal and testator, you can amend a power of attorney as well as a last will and testament. If you feel your agent is no longer fit to carry out their duties, or if you believe you have made a poor choice for your executor, then you can go about amending and/or revoking the old documents.
In the case of a power of attorney, you must create and notarize a revocation form, and create a brand-new power of attorney document. This will null and void an agent’s authority to act in your name as per the terms of the original agreement and create a new one in its place.
The process for amending a will may be simpler depending on what other changes you have in mind. In many cases, you must simply attach a codicil to the original documents. In either case, it is recommended to work with a professional. Even the simplest clerical errors can put your entire estate plan in jeopardy and cost you or your estate a considerable sum in the future, not to mention stress and time.