Betwixt and Between

Transitions can be stressful and confusing – both in life and in death. The period after a loved one passes away and before the probate of their estate opens can be particularly problematic. Often, I see non-lawyers adopting one of two approaches to address the situation. Both are incorrect.

Approach #1: “I can continue to access the deceased’s bank accounts, etc. to pay bills, because he executed a General Durable Power of Attorney. And I’m his Attorney-in-Fact.” This is a common misperception. The reality is that a General Durable Power of Attorney is only effective when the person who executes it is still alive. Pursuant to RCW 11.125.100(1)(a), “[a] power of attorney terminates when [t]he principal dies.” Once the death occurs, an Attorney-in-Fact’s authority ends and no further financial activity can be conducted on the decedent’s behalf pursuant to that authority.

Approach #2: “I can access the deceased’s bank accounts, etc. to pay bills, because he executed a Will. And I’m his Personal Representative.” This too is a common misperception. There is a world of difference between being the decedent’s named Personal Representative and being the appointed Personal Representative. To be the appointed Personal Representative, there needs to be a court order that makes it so. Once a judge makes this determination, then the court can issue certified letters testamentary pursuant to RCW 11.28.090. Letters testamentary demonstrate that the Personal Representative has the legal authority to serve as the executor of the estate. Absent that court order, the fact that someone’s Will names someone as the Personal Representative does not grant that person any authority whatsoever.

So, what’s a person to do in that awkward interim period between when a loved one passes and before they receive the letters testamentary? They should consult with their attorney prior to doing anything. It’s far better to do nothing than to press forward and take actions that may feel productive, but in reality are improper due to a lack of legal authority.

If you are having problems sorting all of this out, please let us know. We’d be happy to help.