Probate, power of attorney and executers of a will

Power of attorney

A power of attorney is a document in which one person, known as the ‘donor’, gives another person, known as the ‘attorney’, the power to act on their behalf; in their name and best interest.

Power of attorney becomes relevant when a person is no longer able to make decisions on their own (or chooses not to).

Legally, family members don’t automatically have the right to take on this responsibility and to be appointed, a formal power of attorney document is required.

There are 2 different types of power of attorney:

• Ordinary powers: This may be general power to do things on behalf of the donor, limited to their property and/or financial affairs, while the donor still has mental capacity.
• Lasting power of attorney (LPA): This gives the individual responsibility and permission to act on behalf of a donor in the event of the loss of mental capacity.

This authorises a decision maker regarding the donor’s property and financial affairs and may also be used to authorise decisions on the donor’s health and welfare.

Executer of a will

An executor is someone named in the will as responsible for dealing with someone's money, possessions and property (collectively called their 'estate'). An executor may have to apply for a special legal authority before they can deal with the estate. This is called probate.

If no executor is named or if the executor is unwilling to act, the administrator will take on this role instead. Who can act as administrator of the estate is defined by a fixed order of priority. An executor or administrator may also be called a personal representative.

Responsibilities may include:

• Applying for probate
• Announcing the death of the deceased person
• Maintaining property
• Paying debts and expenses
• Sharing out the estate

Probate

Probate is the legal right to deal with someone's estate when they die. It’s the permission you need to administer someone’s will.

A grant of probate is a legal document, which gives the executor the authority to administer the estate of the deceased person. You may have to apply for a grant of probate if you are the named executor in someone's will.

This is not always necessary; first the total value of the estate is assessed, and whether it is liable for inheritance tax, then a grant of probate is applied for, and an inheritance form is submitted. The tax and any outstanding bills can then be paid, and assets can be distributed as instructed in the will.

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