A power of attorney grants an individual, known as an agent or "attorney-in-fact," the power to act on behalf of the person granting the power, known as the "principal." This document may give an agent broad authority to manage the principal's finances or limited authority during the principal's lifetime, such as the power to pay specific bills. Executors, on the other hand, are named by a will maker, or "testator," in a last will and testament and their authority only comes into existence upon the death of the testator.
Agent Vs. Executor
An agent acting under a power of attorney only has the authority to act on the principal's behalf during the principal's lifetime. In fact, a power of attorney -- and by extension, an agent's authority -- is terminated upon the principal's death. Conversely, an executor is named in a last will and testament, which does not come into effect until the person who made it passes away.
Power of Attorney Vs. Last Will and Testament
Although power of attorney documents are flexible, they do not address who may administer the principal's estate upon the principal's death -- that is what a will is for. The powers granted to an agent are operable only during the principal's lifetime. These powers may include the authority to make health care decisions when the principal is incapacitated or the ability to access bank accounts and purchase real estate. On the other hand, a last will and testament dictates how the testator's property is to be divided after his death. The executor named in the will is responsible for dividing the property according to the testator's wishes.
If a Principal Dies Without a Will or With a Will
If a principal failed to make a will, he failed to name an executor. Because an agent and an executor are two very different things, an agent does not automatically become an executor. This is because the authority granted in a power of attorney cannot address what is to happen after the principal's death. Therefore, an agent's power does not supersede that of an executor if a principal made a will. If the agent named in a power of attorney is the same person named as executor in the principal's will, a probate court will likely approve the executor's appointment unless the principal's relatives object.
Read More: Can a Power of Attorney Be Revoked by a Mentally Incompetent Principal?
Probate Court Appointment
The person named as agent in a power of attorney may petition a probate court for appointment as executor -- also known as "personal representative" -- upon the principal's death. However, the probate court is under no obligation to appoint the agent as executor simply because the agent was given authority via a power of attorney during the deceased principal's lifetime. If a probate court does not believe the agent is an appropriate fit for the role of executor, it will appoint someone else.
Ellis Roanhorse has been writing professionally since 2007. His work has been published in the "Loyola Law Review," "The Portland Mercury" and "Carillon Magazine." Roanhorse holds a Master of Arts in political science from the University of Chicago and a Juris Doctor from the Loyola Marymount School of Law.