can a full power of attorney do a will for someone who is unable

I am full power of attorney for my brother who has no will.

Asked on May 3, 2017 under Estate Planning, Virginia

Answers:

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

Answered 3 years ago | Contributor

A Will must be signed by the person who is making it (known as the "testator").. A power of attorney has no authority to do that under the law. The reason is that a testator must be mentally competent at the time their Will is executed. If your brother dies without a Will this means that he will pass "intestate". Accordingly, the intestacy or "succession" laws of the state in which he is domiciled as of the date of his death will control, so his heirs will inherit.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

No, a power of attorney does not let you create a will for another person, even an incompetent one. If your brother is mentally competent but has communications issues, there are ways to do and have him execute a will anyway; consult with a probate law attorney. But if he is simply incompetent, you cannot create a will for him, and when he passes, his property will pass by intestate succession (if your parents are deceased and he has no spouse or children, it should go to you as his brother).


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