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How long does Power of Attorney continue?

Dear Mr. Premack: I was handling a sale transaction for land as Agent under a durable power of attorney. The land-owner (for whom I am acting) died before the closing was finished. Would it be legal to complete the deal? How many days does the power of attorney carry over after death? – BH

The durable power of attorney (if it was written to comply with Texas law) gave you authority to handle a wide variety of transactions for the principal (the person for whom you were acting). The statutory provisions include authority to handle real estate transactions, including the sale of land.

You must, by law under the durable power of attorney, be acting as representative for a living person. When you actually sign a document for the principal, you sign the principal’s name as though it was the principal signing (and you indicate that you are acting as agent by including the phrase “acting by and through his agent” or similar wording).

It is obvious that if the principal has died, he would not be able to sign a document. If the principal cannot sign, then the agent who represents the principal likewise cannot sign. A durable power of attorney terminates the moment that the agent becomes aware of the principal’s death.

That leaves only one situation under which you might have acted after the moment of the principal’s death: if you lacked “actual knowledge” that the principal had died. The statute recites that “…the death of… a principal… does not revoke or terminate the agency as to the attorney in fact… who without actual knowledge of the termination of the power… by the principal’s death… acts in good faith under or in reliance on the power.”

You know your principal has died. Any additional action under the power of attorney would be taken after you have actual knowledge of his death. Thus you cannot legally take that action. The power of attorney does not carry over after death for a set number of days. It expires the moment that the agent becomes aware of the principal’s death.

What can you do instead? The person who was nominated as Executor under the principal’s Last Will and Testament must take the Will to probate court. Once the judge has reviewed it, letters testamentary will be issued which authorize the Executor to complete the transaction on behalf of the deceased principal.

There is another way the principal could have avoided this situation. Instead of retaining ownership of the land and giving you power of attorney, the principal could have created a revocable grantor trust (often called a living trust). He would have then transferred land title into the trust, and specified that upon his disability or death you would take management authority as successor trustee. Under the terms of a trust, you would then have legally retained authority to sell the land whether the principal was alive or had died during the process.

Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, January 21, 2011


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