Do I need probate if I have power of attorney?
A power of attorney ends the moment the person dies. It gives you no authority over their estate, and it neither removes nor creates the need for a grant.
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The short answer
- Every power of attorney, lasting or enduring, ends at death. From that moment you have no authority to operate the person's accounts or deal with their property.
- Using the power after death is unlawful, even to pay the funeral bill or with the family's agreement. Banks will reverse the transactions.
- Whether a grant is needed depends on the assets, exactly as if there had been no attorney: sole-name property or a sole-name account above the holder's limit means yes.
- Being the attorney does not make you the executor. The will names the executor; if there is no will, the closest relative applies.
- The attorney's records are useful. You know the accounts, the income and the bills, which makes valuing the estate much faster.
What happens to the LPA at death
A lasting power of attorney for property and financial affairs, an enduring power of attorney made before 2007, and any ordinary power of attorney all come to an end automatically when the donor dies. The Mental Capacity Act 2005 is explicit about it. The attorney's role was to act for a living person who could not act for themselves; there is no living person left to act for.
Tell the Office of the Public Guardian, which will cancel the registration, and return the original LPA document to it with a copy of the death certificate. Tell each bank where the LPA was registered; they will remove your access to the accounts and freeze sole-name accounts pending the estate being dealt with.
Do not make any further payments from the person's accounts, even sensible ones. An attorney who pays the funeral director or the care home fees from the donor's account the day after death has acted without authority, and the bank will treat the transaction as unauthorised. The funeral invoice should instead be sent to the bank, which will pay it directly from the frozen account; care home and other final bills are debts of the estate and wait for the personal representative.
Who has authority now
If there is a will, the executor it names has authority from the date of death, and applies for a grant of probate if one is needed. If there is no will, the closest relative applies for letters of administration and has no authority until it is issued. The attorney has no standing in either case unless they happen to be the executor or the entitled relative as well, which is common: the person a donor trusted with an LPA is often the person they named in their will.
If you are the attorney but not the executor, hand over your records to the executor promptly: the accounts you managed, the income the person received, the regular outgoings, any property you dealt with, and the annual summaries you may have prepared. Executors routinely spend weeks reconstructing exactly this information; you already have it.
Whether a grant is needed
The LPA is irrelevant to this. Apply the ordinary test to what the person owned: assets held as joint tenants pass to the survivor without a grant; sole-name accounts below the holder's limit (around £50,000 at most large banks, £5,000 at NS&I) are released on the death certificate; sole-name property, a tenants-in-common share or a sole-name holding above a limit means a grant is needed.
An attorney's donor has very often moved into care, and the family home has often been sold to pay for it. That can leave a large sole-name cash balance, sometimes spread across several banks to stay within deposit protection limits. Each bank's limit applies separately, so a person with £45,000 at each of three banks may need no grant at all, while a person with £90,000 at one bank does.
The attorney's records and the estate
Attorneys must keep the donor's money separate from their own and keep records of what they did. Those records are now the starting point for the estate: they show the date-of-death balances, the income that needs to be stopped, and any gifts made during the donor's lifetime, which HMRC will ask about for inheritance tax if a grant is applied for (gifts in the seven years before death count towards the estate).
If you were paid for acting, or reimbursed expenses, those figures should be in the records too. Beneficiaries are entitled to ask, and a clear account protects you.
Common questions
Does a lasting power of attorney continue after death?
No. Every form of power of attorney ends automatically when the person who made it dies. The attorney has no authority from that moment, and the Office of the Public Guardian and the banks should be told so that the registration is cancelled.
Can I use power of attorney to pay the funeral bill?
No. The power ended at death and any payment made under it afterwards is unauthorised. Send the funeral director's invoice to the bank holding the deceased's account instead; banks will pay it directly from a frozen account without a grant.
Is probate required if I have power of attorney?
The power of attorney makes no difference either way. A grant is needed if the estate includes property in the deceased's sole name, a tenants-in-common share, or a sole-name account above the holder's limit. It is not needed if everything was joint or below the limits.
Does the attorney become the executor?
Not automatically. The executor is whoever the will names. If there is no will, the closest relative under the intestacy rules is entitled to apply for letters of administration. The attorney is often the same person, but only because the donor chose them for both roles.
What should an attorney do when the donor dies?
Stop using the power at once; notify the Office of the Public Guardian and return the original LPA with a copy of the death certificate; tell each bank where the LPA was registered; and hand your records of the donor's finances to the executor or administrator, who will need them to value the estate.
Do I need probate if I have a deputyship order instead of an LPA?
A Court of Protection deputyship also ends at death, and the deputy has no further authority. The deputy must submit a final report to the Office of the Public Guardian. Whether the estate needs a grant depends on the assets in the usual way.
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Important
Solace is not a firm of solicitors and does not provide legal, tax or financial advice. We are an estate administration service and we are not regulated by the Solicitors Regulation Authority, the Financial Conduct Authority or any equivalent body. Nothing in this guide constitutes legal, tax or financial advice, and no solicitor–client relationship is created by reading it.
This article is general information only. It reflects the position in England and Wales at the date shown above; the law and the figures change, and Scotland and Northern Ireland differ in important respects. It may not apply to your circumstances. Whether a particular estate needs a grant is ultimately decided by the organisations holding the assets, and their limits change. Administering an estate carries personal legal responsibility, and you should obtain advice from a qualified solicitor, accountant or other regulated professional where appropriate. Always check current rates, fees and deadlines against GOV.UK before acting.