Fortunately, the answer is YES, but with a caveat. While you can use money in the estate to pay for funeral cost s, you can’t do it immediately; you will need to treat funeral cost s like any other expense of the estate.
Full Answer
· Power of Attorney Requirements in California. A power of attorney allows someone else to handle financial or healthcare matters on your behalf, and California has specific rules about types and requirements. A power of attorney (POA) gives someone you name the authority to handle legal or financial matters for you under specific circumstances.
· Once the power of attorney is executed, the original is given to your agent, who may then present it to a third party as evidence of your agent’s authority to act for you (such as withdrawing money from your bank account, or signing papers for you at a real estate closing). You are legally obligated to a third party who relies on the power of ...
Usually, the executor is responsible for arranging the funeral, covering the costs of the funeral arrangements, and managing the estate after death. With legal access to the estate of the person who has died, the executor may be able to fund the funeral costs through the savings or assets left behind.
On their death, it will be the responsibility of the late donor's Personal Representatives to manage this estate. Typically, this involves collecting in the estate assets, money and property, settling debts, and paying any remainder to the beneficiaries.
Attorneys can even make payments to themselves. However, as with all other payments they must be in the best interests of the donor. This can be difficult to determine and may cause a conflict of interests between the interests of an Attorney and the best interests of their donor.
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You may need access to some of the deceased person's money to pay for funeral expenses. Many banks have arrangements in place to help pay for funeral expenses from the deceased person's account (you should contact the bank to find out more).
It doesn't matter that you previously had authority to make decisions on their behalf, as it's not the same thing. So the fact that you had power of attorney has no influence over whether or not probate is needed.
The Power of Attorney must be registered with the Office of the Public Guardian to be valid before a property can be sold using the Power of Attorney, this is the case even if the donor (the person making the Power of Attorney) still has mental capacity.
Borrowing Money as Power of Attorney. One of the questions which I am asked over the years is whether an attorney using the authority under a power of attorney can access money held for an incapable donor to be used for other purposes than to benefit the donor. THE ANSWER IS NEVER!
A will protects your beneficiaries' interests after you've died, but a Lasting Power of Attorney protects your own interests while you're still alive – up to the point where you die. The moment you die, the power of attorney ceases and your will becomes relevant instead. There's no overlap.
You cannot give an attorney the power to: act in a way or make a decision that you cannot normally do yourself – for example, anything outside the law. consent to a deprivation of liberty being imposed on you, without a court order.
Putting in place a power of attorney can give you peace of mind that someone you trust is in charge of your affairs. If you're aged 18 or older and have the mental ability to make financial, property and medical decisions for yourself, you can arrange for someone else to make these decisions for you in the future.
If you sign a general power of attorney form without including any limitations, you give your agent authority to take any financial action on your behalf that you could take yourself, including obtaining a debit card.
With a financial power of attorney, you name a trusted person to pay bills, make bank deposits, watch over investments, collect insurance or government benefits, and handle other money matters on your behalf.
Who makes financial decisions for me under a California financial power of attorney? In California, the person you name to make decisions for you is called your agent. Any competent adult can serve as your agent; the person most definitely doesn't have to be a lawyer.
If you don't, it will automatically end if you become incapacitated. If you don't want to make an immediately effective document, you can state that your power of attorney will not go into effect unless a doctor certifies that you have become incapacitated. This is called a "springing" durable power of attorney.
A durable power of attorney automatically ends at your death. It also ends if: You revoke it. As long as you are mentally competent, you can revoke your document at any time. You get a divorce. In California, your durable power of attorney is automatically terminated if your spouse is your agent and you get a divorce.
A court invalidates your document. It's rare, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it , or that you were the victim of fraud or undue influence . No agent is available. To avoid this problem you can name an alternate agent in your document.
What Is a Financial Power of Attorney? A financial power of attorney is a particular type of POA that authorizes someone to act on your behalf in financial matters. Many states have an official financial power of attorney form.
You are legally obligated to a third party who relies on the power of attorney in dealing with your agent.
Your agent may do as much, or as little, as you wish, depending upon what you say in the POA. Some people grant an agent the authority to conduct all financial matters, while others only authorize a single financial transaction (such as signing documents at a real estate closing).
The authority also ends if you revoke it, a court invalidates it, your agent is no longer able to serve and you have not appointed an alternative or successor agent, or (in some states), if your agent is your spouse and you get divorced.
The big question about any POA is will a third party accept it? Generally, a third party is not required to accept a power of attorney. However, some state laws provide for penalties for a third party who refuses to accept a power of attorney using the state’s official form. One thing you can do to help assure its acceptance is contact anyone you think your agent may need to deal with and be sure they find your POA acceptable.
Therefore, you may end up with more than one financial POA form. Generally, a financial power of attorney must be signed before a notary public. Especially if the sale or purchase of real estate is involved, it may also need to be signed before witnesses. In a few states, the agent is also required to sign to accept the position of agent.
Many states have an official durable power of attorney form, which is usually a durable financial power of attorney form. Some banks and brokerage firms have their own power of attorney forms. Also, for buying or selling real property, a title insurance company, lender or closing agent may require the use of their form. Therefore, you may end up with more than one financial POA form.
Power of attorney for health care : A power of attorney authorizing the agent to make health care decisions for the principal. Becomes effective when the principal lacks the capacity to make such decisions. The authority does not terminate upon the death of the principal. Unless limited in the instrument, gives the agent the authority to a.) authorize an autopsy, b.) make an anatomical gift, and c.) control the disposition of the remains of the principal. The authority to do these things does not have to be stated in the document. (Prob C § 4683) (Prob C, Division 4.7)
General power of attorney : A written instrument wherein an individual (the “principal”) authorizes another individual (the “agent” or “attorney-in-fact”) to act on behalf of the principal with regard to the principal’s personal property or other assets. The agent has no authority to make healthcare decisions for the principal. Terminates upon revocation by the principal, the incapacity of the principal, or the death of the principal or agent, whichever first occurs. (Prob C § 4022)
All powers of attorney dated prior to January 1, 1992, expired after seven years (unless the principal was incapacitated as of that date), or its expiration date was extended prior to that date (e.g. via an amendment to the instrument).
Powers of attorney for health care may be a in stand-alone format, or part of an Advance Health Care Directive, or simply an Advance Directive.
Springing power of attorney : A power of attorney that becomes effective at a specified future time or on the occurrence of a specified future event or contingency. A springing power of attorney may, or may not, be durable. (Prob C § 4129)
A durable power of attorney legally executed in another state is valid in this state to the same extent as a durable power of attorney executed in this state regardless of where the principal resides. (Prob C § 4053)
Anyone on the POA declaration can revoke the POA at any time (such as the individual, business, or representative).
A power of attorney (POA) declaration gives another person the legal right to: 1 Look at your account information 2 Talk to us 3 Send us information 4 Represent you
The POA gave you the authority to act on his behalf in a number of financial situations, such as buying or selling a property for him or maybe just paying his bills.
This begins the probate process to legally distribute his property to his living beneficiaries. The executor named in his will is responsible for doing so and guiding the estate through the probate process. 2
As a practical matter, most financial institutions immediately freeze the accounts of deceased individuals when they learn of their deaths. The freeze remains in place until they're contacted by the executor or administrator of the estate. If you were to attempt to use the POA, it would be denied.
The deceased person no longer owns anything for you to handle for him because he can't legally hold money or property. The POA might authorize you to make financial transactions for him, but he technically no longer owns the property or the money over which the POA placed you in charge.
You would continue to have authority over the deceased's bank accounts and other assets if you're also named as the executor or administrator, at least until ownership can be transferred to living individuals.
The court will appoint an administrator to settle the estate if the deceased didn't leave a will. You can apply to the court to be appointed as administrator, and the court is likely to agree if the deceased left no surviving spouse, or if his surviving spo use and his other children agree that you should do the job. 4
When There's Not a Will. The deceased's property must still pass through probate to accomplish the transfer of ownership, even if he didn't leave a will . The major difference is that his property will pass according to state law rather than according to his wishes as explained in a will. 3 .
Named by the will, the executor is bound by the provisions of that is power of attorney good after death.
Limited powers are restricted to a single matter or field. The purpose of a power of attorney is to act as the person’s agent during their lifetime.
Need Legal Help? 58% of people age 53 to 71 have estate planning documents that will help manage their estate in the event of POA after death. When that happens, an estate executor is named that will take over the legal and financial obligations of the deceased.
If a person is assigned non-durable power of attorney, their duty expires when the principal becomes incapacitated. When is power of attorney valid after death the principal of incapable of handling their own affairs, a non-durable power of attorney is power of attorney good after death and no longer valid.
The law across all states dictates that power of attorney expires when the principal dies. However, expiration doesn’t take effect until the power of attorney is aware of the death of the principal. In practices, this means that they may continue to act on their behalf until they’re aware of the death.
The person who designates the power of attorney is known as the principal . The individual who is given legal power of attorney is called the agent. They can be given broad or limited is power of attorney good after death.
A person who requires someone to make decisions and sign documents on their behalf can assign a Power of Attorne y to another individual. They can choose a trusted individual from among their friends and family, or they might choose their attorney.
Power of attorney dies with you. Once you pass away, the document is no longer valid and your will then controls what happens to your assets. Fund your revocable trust. If you fund your revocable trust during your lifetime, you may not need to use your power of attorney although you should still have one just in case.
In a power of attorney, you name someone as your attorney-in-fact (or agent) to make financial decisions for you. The power gives your agent control over any assets held in your name alone. If a bank account is owned in your name alone, your attorney-in-fact will have access to it.
Name an alternate. If your named agent dies before you or is incapacitated, you want to have a back-up who can act. Also, consider nominating a guardian and conservator in your power of attorney in case one is needed down the road. Read the document. This seems obvious, but clients often do not read their documents.
Depending on the language of the power of attorney, your agent may be able to change the ownership of your bank accounts or change your beneficiary designations. This is a common scenario in second marriages.
The unfortunate answer is “yes. ”. Since he will have access to your financial accounts, he can access your funds and use them for his own benefit. The agent does have a fiduciary duty to use the assets only for your benefit or as you direct in the document.
Consider your options. There are two types of powers of attorney. A durable power of attorney is effective when you sign it and survives your incapacity. A springing power of attorney springs into effect when you are incapacitated. A springing power of attorney seems more attractive to most people, but it is actually harder to use. Your agent will need to convince the bank that you are incapacitated and, even though the document spells out how to do that, your local bank branch often does not want to make that determination. Translation: your lawyer often needs to get involved. For that reason, most attorneys advise you to execute a durable power of attorney. The attorney will often hold the original power of attorney until it is needed as an extra protection.
If you have transferred an asset to your trust, your trustee will have control of the asset. Consider your options. There are two types of powers of attorney. A durable power of attorney is effective when you sign it and survives your incapacity.
Again, nobody is legally responsible for funeral expenses unless they signed something agreeing to take responsibility. It’s only the estate of the deceased that is legally responsible for these costs. The funeral home is paid out of money from the deceased’s estate before any funds or assets are distributed to heirs.
The funeral costs fall to what’s known as the “executor” or “administrator” of the estate. The executor is appointed in the deceased’s will and is responsible for planning and arranging payment for the funeral. This is usually a spouse or close relative.
If there is no money, nobody has to pay for the funeral. As mentioned earlier, there are programs and assistance options that help cover the costs of a service. However, a funeral is optional.
Arrangements are still necessary for the body. Whether you choose burial, cremation, or another option, the executor makes a decision. If all family members refuse the position of executor, the probate court will appoint someone to the position. The least expensive option is usually cremation or direct cremation, and the body may not have any lasting headstone or marker.
If there are no funds in the estate to afford the cost of a funeral, and the family refuses to pay for it, there won’t be one. There is no legal obligation to host a funeral service. Arrangements are still necessary for the body. Whether you choose burial, cremation, or another option, the executor makes a decision.
The funeral home is paid out of money from the deceased’s estate before any funds or assets are distributed to heirs. If the estate alone isn’t enough, children might use their own funds or other family’s funds to afford these expenses.
If everyone steps back to look at the big picture, this often brings clarity . Remember that everyone is feeling the same grief. Be patient and understanding.