As an estate planning lawyer, I often receive questions about the roles and responsibilities of an executor and a power of attorney (POA), especially in situations where a loved one is no longer living at home. A question I recently received encapsulates a common misunderstanding:

“My mom is in a nursing home and her house is sitting vacant. She named me as the Executor of her will, and I want to meet with a realtor to get it sold. I’m being told by the title agency that I don’t have the right to do that. How is that the case?”

Understanding the distinctions between an executor and a POA can help clarify this situation.

Executor’s Role After Death

An executor is a person appointed in a will to manage the deceased person’s estate after their death. This includes paying off debts, distributing assets to the beneficiaries, and, if necessary, selling property. However, the role of an executor only becomes effective after the person’s death. 

Power of Attorney While Alive

If your mother is still alive, even though she is living in a nursing home, she is the only one who has the legal authority to sell her house unless she has granted someone Power of Attorney (POA). A POA is a legal document that gives someone else the authority to act on her behalf in legal or financial matters. This can include selling property, provided the POA document grants that specific authority.

Seeking Guardianship 

If your mother doesn’t have a POA in place, or if it doesn’t grant you the specific authority to sell property, and she is not able to make decisions due to mental incapacity, you might need to seek an Article 81 guardianship. This is a legal processes that grant you the authority to manage her affairs. 

We’re Here to Help

Understanding the legal intricacies of estate planning, including the roles of executors and POAs, can be complex. I can guide you through these processes, ensuring you understand your rights, roles, and responsibilities. If you find yourself in a similar situation or have any questions, contact us today for advice.

This article is a service of Miller & Miller Law Group. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love.


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