Question: My mom recently died, and I’m her Power of Attorney. Am I able to contact a realtor to start the process of selling her house? I don’t want the bills to start piling up.
Answer: Believe it or not, this is a common question that I receive as an Orange County Will lawyers receive after the loss of a loved one. We often hear from people who were once named as a Power of Attorney (in this situation, an adult child), and they want to know if they can continue acting on their loved one’s behalf after their passing.
The problem is that rights afforded under a Power of Attorney cease when the person who created the document dies. A former Power of Attorney agent cannot sell a house or handle any financial matters after their loved one’s passing. They can’t even legally sign a listing agreement to get the ball rolling with a real estate agent.
So, What Happens Next?
Unless the house was owned by a Trust, an estate will likely need to be opened with the local probate courts before any assets can be sold or passed down to heirs. If the deceased had a Will at the time of his or her death, a judge will have the responsibility of validating the Will before the executor can carry out his or her duties. If the person died without a Will, the judge will appoint an administrator who will handle all further decisions regarding the estate.
Note: even if you know that you are named as the executor in your loved one’s Will, you still cannot proceed until you are officially appointed by the court!
Once legally appointed, the executor or administrator will have the responsibility of dealing with any debt or liens related to the property in question. Depending on the language in the Will, the Executor can also engage a real estate broker at this point to sell the house. Executors should be prepared to offer proof to a real estate broker or title company that they have the right to sign the listing agreement and a deed.
Finally, the executor or representative should bear in mind their fiduciary duty to the estate when they are selling the property. The point of probate is to make sure that all interested parties (ranging from heirs to creditors) get their fair share. If the house goes under contract for a price significantly below market value, there’s a possibility that the judge could halt the sale due to fraud or self-interest on the part of the executor.
Navigating “who can do what” and “who gets what” after the loss of a loved one can be tricky. If you have questions, we invite you to schedule an appointment with an Orange County Will lawyer where we will meet with you and your family to walk you through your next best steps.