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Estate Tax Law
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Power of Atterney vs Estate Executor

Resolved Question:

How do the two concepts relate or differ? If there is no will from my deceased parent but I still have the Power of Atterney can I automatically assume I am by default also the executor of the estate or obligated to be? (There is no will and there are no real assets except debts remaining)
Submitted: 6 years ago.
Category: Estate Law
Expert:  Estate Tax Law replied 6 years ago.

A Power of Attorney is basically a grant of power to a person to make legal and financial decisions on behalf of the grantor. Powers of Attorney can be limited in scope to certain activites (buying selling real estate, financial decisions etc.) or can be general (all legal, business, financial decisions). When the grantor of the power dies, the Power of Attorney expires.

An estate executor is someone who handles the decedent's estate at death. They will gather the assets, determine beneficiaries, pay debts, notify creditors and distribute assets as well.

I'm sorry to hear about your parent's passing. When someone dies without a Will they have died intestate. Normally a Will designates the individual to handle the estate at their death, when there is no Will intestacy laws will apply.

According to the following statute from BC:

(1) If a person dies intestate, or if the executor named in a will refuses to prove the will, the court may grant the administration of the estate of the deceased person

(a) to the surviving spouse of the deceased person,

(b) to one or more of the next of kin, or

(c) to the surviving spouse of the deceased person jointly with one or more of the next of kin,

as to the court seems expedient.

This is the order from which the court will appoint an executor. There is no automatic assumption that you will be executor simply because of your Power of Attorney status.

You are not obligated to serve as executor of the estate if you do not want.

27 (1) A personal representative of a deceased person may at any time apply to the court to be discharged from office, whether as personal representative alone or as personal representative and trustee.

(2) A personal representative may make an application under subsection (1)

(a) whether the person has been appointed executor under a will or administrator by the court,

The court will then appoint a new executor in your stead.

 

Hope this helps.

Estate Tax Law, Attorney
Category: Estate Law
Satisfied Customers: 13
Experience: Able to provide answers to estate planning and tax planning questions.
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