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Power of Attorney vs. Executor: What's the Difference? - Werner Law Firm

Power of Attorney vs. Executor: What's the Difference?

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: October 28, 2019

When securing your estate, it pays to remember that choosing the right person for the job can make an astounding difference. You can secure your assets through trust agreements and a well-written will, but the management of your estate during and after your death will require the calm and experienced hand of a trusted friend […]

When securing your estate, it pays to remember that choosing the right person for the job can make an astounding difference. You can secure your assets through trust agreements and a well-written will, but the management of your estate during and after your death will require the calm and experienced hand of a trusted friend or professional.

More than just a matter of knowing who gets what, estate planning also means thinking about who’s in charge of making sure your plans are fulfilled. Among the many people who might have a hand in your estate plan, it’s important to think of who should act as your will’s (or trust’s) executor (trustee), and who should be given durable power of attorney (if at all).

An executor is someone who oversees and administrates the process of fulfilling a will or trust, making sure your will is properly carried out after your passing. An executor’s job begins after you’ve passed away. Someone with a power of attorney gets to work while you are still alive, yet unable to make choices for yourself.

In both cases, you are essentially asked to pick representatives who can accurately represent your wishes and interests, when you aren’t there to represent them yourself (either in death or due to incapacity). Trust is important, as is competence. Before you choose your representatives, know what their duties might be.

What Is a Power of Attorney (POA)?

    • A power of attorney is a document that gives someone the ability to act on behalf of the document’s grantor or principle, usually within certain limits, and with different documents detailing different capabilities. For example, a regular or general power of attorney does not give your agent the ability to represent you while incapacitated, mentally or by illness or injury. It simply gives them the ability to act on your behalf, just as you might.
    • Even more limited is a limited power of attorney, which specifically gives someone the right to act on your behalf within very specific parameters, such as only being able to sign on your behalf for a specific cause, or for one day.
    • A durable power of attorney gives your agent the ability to act on your behalf even after you’ve been incapacitated, although it can still be limited (for example, someone with a limited durable power of attorney may be given the ability to make certain healthcare decisions for you, but cannot act on your behalf in order to make financial decisions or pay the bills).
    • A springing power of attorney only goes into effect once you have become incapacitated and does not give your agent any powers until you are otherwise indisposed.

As with all things legal, the specifics and details are important – for example, in a springing power of attorney, it is critical to carefully and specifically outline what it means to be incapacitated, in order to clarify when the power of attorney is triggered and goes into effect.

What Is an Executor?

Any power of attorney document will be rendered effectively meaningless upon the principal’s death. You cannot make financial or healthcare decisions on behalf of someone who is dead, unless you have been chosen to execute their will as per their last will and testament, or a trust they have set up. That is where an executor comes into play.

An executor’s role depends on how the decedent’s estate plan is set up. Generally, an executor is in charge of the decedent’s will, representing the estate in the probate process, and taking on the responsibility of executing the will, and fulfilling a series of duties during the probate process, including:

    • Kick-starting the probate process by filing for a petition, with the decedent’s death certificate.
    • Notifying all creditors of the decedent’s passing through a newspaper ad, or other means.
    • Identifying and locating the entirety of the decedent’s estate and bringing forth their will.
    • Valuating and consolidating the decedent’s assets, in order to determine the estate’s full value.
    • Taking care of final financial details, including the final tax report, outstanding debts and bills, and other responsibilities.
    • Managing and taking care of the decedent’s assets and property, including homes, vehicles, land, and pets.
    • Executing the decedent’s will, distributing their assets after probate.

An executor is critical, and one will always be chosen by the probate court. The courts will usually choose whoever is listed as executor in the will, unless there’s clear evidence that they are not fit for the role. They can also refuse to take responsibility. In that case, the court will usually pick another relative.

The family may also choose an estate planning attorney as executor. Attorneys are bound by a fiduciary duty to act in the best interests of the estate. If an executor steals or fails to perform, it’s up to the estate’s beneficiaries to act quickly.

A Difference in Roles

The main difference between an agent with power of attorney and the executor of a will is that one represents a living person while they are alive, and the other represents a decedent’s estate while they are dead. The two do not intersect at any point.

This effectively means that one person can fulfill both roles. However, it’s important to know that this places an incredible amount of pressure on said person, especially with a complex estate or complex financial situation. If you are struggling to find several reliable individuals to act as your agents or as your executors, consider hiring a reputable estate planning professional to help.

If You Change Your Mind

You can revoke a power of attorney while you are still alive, so long as you are mentally competent. You can also change who you plan to have as executor, as long as you are mentally fit to do so. Once you pass away, your power of attorney no longer has any effect.

A power of attorney will also be revoked if an agent is unable to serve, such as if they have disappeared, abandoned their duties, or died. An executor is also just a temporary position, as the title means nothing once an estate has been completely dissolved and settled.

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