Posted in Firm News on September 22, 2021
If you have lost somebody that you love, you may wonder who will be responsible for making decisions about the deceased’s assets and their estate. You may think that this involves a power of attorney document, but the reality is that a power of attorney ceases to be valid after a person passes away. Here, we want to discuss who has control over a person’s assets after a person passes away in Georgia.
Most people believe that a person who has a power of attorney will continue to have the authority to administer an estate following the death of a loved one. That is not the case. One of the key tenets of a power of attorney is that they do not persist after a person passes away.
A power of attorney is a legal document that allows one person to act on behalf of another person. There are various types of powers of attorney, and they can be structured to suit the needs of those involved. For example, a person can assign a power of attorney to help them enter into contracts, deal with real estate and personal property, handle financial and tax affairs, and arrange for housing and health care.
Typically, a power of attorney becomes invalid as soon as the “principal” becomes incapacitated. However, a durable power of attorney can remain in effect after incapacity and until the death of the principal or until the document is revoked.
Following the death of a loved one, there is often a chaotic period of time where nobody is quite sure who is in charge. This chaos can be headed off ahead of time by establishing a solid estate plan or last will and testament that specifically spells out who should become the personal representative of the deceased’s affairs.
However, this is not always what happens. Yes, a person’s assets have to be protected after their death. Probate is a court-supervised legal process typically required after a person passes away in Georgia. Probate gives a surviving spouse or other close family member of the authority to gather the deceased’s assets, pay taxes and debts, and eventually transfer assets to those who should inherit them.
Typically, probate in Georgia lasts around eight months to a year, unless there is a court fight about who should receive assets.
If the deceased individual named a person to serve as the executor of their estate, commonly referred to as a personal representative, it will be up to this individual to take charge of settling the affairs. If probate is necessary, the personal representative will go to court and request to be formally appointed as the person to handle the estate.
If there was no will, or if the person named in the will is not available or is unwilling not serve as the personal representative, probate court in Georgia will appoint an administrator of the estate. This person will have the exact same job as the personal representative named in a law will and testament.
Personal representatives take an oath promising to act in the best interests of the estate of the deceased (GA. Code Ann. § 53-6-24). This individual has to keep careful records of how the estate assets are handled and distributed, and they will likely have to submit bills, receipts, and bank statements to the court.
If you are power of attorney over an individual and you are concerned about what will happen to their estate after they pass away, you should seek assistance from a skilled estate planning attorney who can help you properly plan for this transition.