‘Do I need probate if I have power of attorney?’ is one of the most common questions clients ask of our specialist wills and probate lawyers, and the answer can be unexpected. If you held power of attorney for someone during their lifetime, it feels natural to assume that authority carries forward after their death. In many cases, people are genuinely surprised to learn that it does not.
To speak to our experts, please call us free of charge on 0800 988 3674 or Make A Free Online Enquiry.
What Does Power Of Attorney Cover?
A lasting power of attorney, which is the most common form in England and Wales, gives a named person the legal authority to make decisions on behalf of someone else while that person is still alive. There are two types of LPA. One covers property and financial affairs, and one covers health and welfare decisions. Between them, they can give an attorney significant authority over a person’s day-to-day and long-term affairs during their lifetime.
A property and financial affairs LPA allows the attorney to manage bank accounts, pay bills, collect income, deal with investments, and handle property transactions on behalf of the donor. It can be used while the donor still has mental capacity if they choose, or restricted to use only once capacity has been lost. A health and welfare LPA, by contrast, covers decisions about medical treatment, care arrangements, daily routine and, where the donor has specifically authorised it, decisions about life-sustaining treatment. This type can only be used once the donor has lost mental capacity; it has no effect while the donor is still able to make those decisions themselves.
Both types must be registered with the Office of the Public Guardian before they can be used, and both are subject to rules about how attorneys must act, including the requirement to act in the donor’s best interests at all times and to keep accurate records of any financial decisions made.
Crucially, a lasting power of attorney is valid only while the donor is alive. The moment the donor dies, the attorney’s authority under it comes to an end entirely. Whatever arrangements were in place under the LPA cease to have legal effect at the point of death.
It is not unusual for the same person to have held lasting power of attorney during someone’s lifetime and then to be named as executor in the will. If that applies to you, there is a practical advantage: your time managing the donor’s affairs means you are likely to have a detailed understanding of their financial position, their assets and their regular outgoings. That knowledge can make the probate process considerably more straightforward.
Is Probate Needed If You Have Power Of Attorney?
After someone dies, their assets do not automatically transfer to the people named in their will, or to the next of kin if there is no will. More often than not, a formal legal process is required first. The executor named in the will, or an administrator where there is no will, must obtain a grant of probate or letters of administration from the Probate Registry to deal with the deceased person’s assets. The grant is the document that gives the executor or administrator the legal authority to deal with the estate, collect assets, settle debts and make distributions to beneficiaries.
The fact that you held power of attorney makes no difference to this requirement. Even if you are both the former attorney and the named executor in the will, those are two entirely separate roles. Your authority as attorney ended at death. Your authority as executor begins only once the grant has been issued.
When Is Probate Not Required?
There are some situations where probate is not needed, and these apply regardless of whether a power of attorney was in place. If all assets were held jointly with another person, they typically pass automatically to the surviving owner without the need for a grant. Small estates where assets fall below certain thresholds set by individual financial institutions may also be released without probate, though thresholds vary considerably between providers.
Not every asset forms part of the probate estate. Pension death benefits, for example, are typically paid at the discretion of the pension trustees and fall outside the estate entirely. Life insurance policies written in trust also pass outside probate. Understanding which assets require a grant and which do not is one of the first things we work through with clients, and it can sometimes simplify the process considerably.
If you are unsure whether probate is needed for a particular estate, we can advise you quickly and clearly. A short conversation is usually enough to establish whether a grant will be required and what the process will involve.
Getting The Right Advice
If you have recently lost someone and are trying to work out what the power of attorney means for the estate administration, or if you have been named as executor and are not sure where to begin, please get in touch with our team. Our offices in Liverpool, Chester and Wrexham are here to help, and an initial conversation costs nothing. We will give you a clear and straightforward picture of what is involved and how we can take the process forward with you.
To speak to our experts, please call us free of charge on 0800 988 3674 or Make A Free Online Enquiry.
Our Flintshire solicitors are proud to serve clients in and around Flintshire, Wrexham, and throughout North Wales. We offer a Welsh language service for those who wish to use it and provide legal advice that rivals that of much larger firms with the personal service of a local practice.
It is estimated that around 900,000 people in the UK are currently living with dementia and although the bigger risk of developing dementia occurs after 65, more than 40,000 individuals under 65 have early-onset dementia.
When it comes to protecting your own interests as well as those of loved ones, the short answer is that you do need both a Will and a Lasting Power of Attorney (LPA) in place.
A Lasting Power of Attorney (LPA) is a legally-binding document that enables one person to give someone else the right to make decisions on their behalf when they no longer have the mental capacity to make these decisions on their own. Or, when they are finding it difficult to arrange their own affairs, for example if they have mobility issues.
The Government is looking at proposals to digitalise the Lasting Power of Attorney process in what would be the biggest shakeup of the system for over 30 years. Demand for digital services has increased dramatically in recent times, particularly during the Covid-19 pandemic, and the current paperwork-heavy system is viewed by many as outdated, with people having to wait at least 12 weeks (and sometimes months longer) to register an LPA.