Many people are unsure about the relationship between a will and a durable power of attorney for finances. However, as you’ll see in this text, the situation is not so much “will vs. power of attorney for finances”, but “will and power of attorney for finances”. You don’t have to choose between these two documents. Rather, it would be beneficial to have them both as a continuous, ongoing protection for your estate and loved ones.

Remember that the following information is not legal advice. If you’d like personalized legal advice, The Law Offices of Irina Sherbak would be happy to hear from you. We invite you to schedule your free, no-obligation 30-minute consultation with an experienced estate planning attorney in San Diego. Call 858-208-8900 today!

What is a will?

First, let’s see the basic difference in scope and purpose between these two important documents. A will lets you decide who will inherit your assets after you die. You, as the testator, choose who your heirs will be and what portion of your estate they will receive. But, that’s not all. Your will allows you to name your executor, the person in charge of distributing your assets as per your will. If you have minor children, or relatives with special needs, you can also determine a guardian or make provisions for relatives with disabilities. Last will and testament must also be signed in front of two witnesses.

What is a power of attorney?

A POA is a legal document that enables someone else to make decisions for you. The person granting the POA is called the principal, and the person receiving the powers is called the agent, or attorney-in-fact. There can be one or multiple agents. It is important to note that you can choose which powers will be given to the agent. In case of multiple agents, it’s possible to give them separate powers.

There are different types of POA. POA can deal with business and financial affairs (financial or general POA) or it can pertain to health and personal care (POA for healthcare). Power of attorney can come into effect right now (durable POA) or after a certain event, usually incapacity (springing POA). The document is automatically revoked when the principal dies, but it can also be revoked at any point during the principal’s life.

Will vs. power of attorney: does the agent become executor automatically?

No. The agent’s job ends with the principal’s death. The authority given through financial POA doesn’t pertain to the principal’s estate when they die. The agent(s) will become executors if the testator (once principal) named them for that position in their will.

The agent will be able to petition the court to become the executor, but the court will have no obligation to fulfil their request. If the court doesn’t believe the petitioner to be fit for the executor position, it will appoint someone else.

Will vs. power of attorney: can the agent alter the will?

No. The agent is authorized to perform only those actions that are listed in the POA for finances. They cannot alter the principal’s last will and testament.

However, even though the agent cannot change the will, under certain circumstances they can liquidate the principal’s assets, so that the estate becomes “empty” and there is nothing for the heirs to inherit. This is an extreme possibility and it is only possible if the POA document gave the agent(s) full authorization to manage the principal’s property. This is why we always emphasize the importance of securing the help of a seasoned estate planning attorney and not just getting a fill-in-the-blank form. A professional will be able to take your unique needs into consideration and write a POA specifically for your needs.

Will and power of attorney for finances

Will and power of attorney for finances are not mutually exclusive. They cover different areas, although both areas are connected to a person’s property. It’s best to have both of these documents, along with other estate planning provisions, to ensure a continuous umbrella to protect your estate and those who matter to you.

We can help you create your estate planning documents hassle-free

The Law Offices of Irina Sherbak are here to offer you experienced and knowledgeable guidance through the estate planning system, so that you can pass on your legacy to your loved ones with maximum gain. Note that we are uniquely qualified to serve Russian-speaking clients. We encourage you to schedule your no-cost, no-obligation consult of 30 minutes with a seasoned estate planning attorney in San Diego. Call 858-208-8900!