If my brother had power of attorney when my father was alive, now that he has passed what is my brother’s authority over the estate?

My father had a Will. Yet, no one mentioned in the Will has received a copy, and his remaining property is being sold by my brother. Does he have right to do this? Should we have received copy of Will by now?

Asked on July 15, 2015 under Estate Planning, Washington

Answers:

Christine Socrates / The Law Office of Christine Sabio Socrates, Attorney At Law

Answered 5 years ago | Contributor

POA ended upon your father's death therefore, any action your brother has taken is not authorized by law.� If he is named as the executor of your father's estate in his will, he would have needed to open up an estate and apply to be appointed executor.� If the will is probated and he has applied to be executor, he is required to give notice to all beneficiaries named in the will as well as heirs at law.� This is required by the court.� You can check with the probate court in the county your father resided at the time of his death, either online or by phone if the docket is not online.� If he filed anything with the court, you would be able to find out as well as get copies of the file.� If you need assistance, I would be happy to help.� Good luck!

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

First of all, a POA ends upon the death of the person who granted it. Therefore, when your father died, any authority that your brother had over your father's affairs terminated. 

Now that your father has pased, his Will is the controlling instument. And whoever was named as the executor is now legally responsible for handling the affairs of your father's estate. This may or may not be your brother. However, if he is selling your father's property, then he would have to be the executor in order to make the sale legal. In fact, as the executor he may have the authority to make this sale, however if the terms of the Will provide otherwise then he is breaching his "fiduciary duty".

The way to make sure is to review the terms of the Will. And as a beneficiary (and also as a person who would be a legal heir if there was no Will), you have a right see it. If you have not been provided a copy, you can contact the probate court in the county in which your father was domiciled as of his death. It would have jurisdiction over the matter.


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