When planning for the future, many people come across two important legal roles: an attorney under a power of attorney and an executor of a will. Both involve making decisions and handling someone else's affairs, but they apply at very different stages of life and death. It is not uncommon for people to confuse the two. Attorneys act while someone is alive but has lost mental capacity, while executors act after someone has died to carry out the terms of their will through the probate process. Understanding the differences between these roles is essential to avoid confusion, disputes, or mistakes in estate administration.
A power of attorney is a legal document in which someone (known as the donor) appoints one or more people (known as attorneys) to make decisions on their behalf. In England and Wales, the most common type is a lasting power of attorney (LPA). There are two forms:
- Property and financial affairs LPA - allows attorneys to manage the donor's money, pay bills, deal with banks, and manage property.
- Health and welfare LPA - allows attorneys to make decisions about healthcare, care homes, and day-to-day living if the donor loses capacity.
An attorney's authority ends automatically when the donor dies. At that point, their powers cease, and responsibility for dealing with the estate shifts to the executor named in the donor's will.
An executor is the person appointed in a will to administer the estate after death. Their role is fundamentally tied to probate - the legal process of proving the will and giving executors authority to act. Executors are responsible for:
- Applying for a grant of probate.
- Valuing the estate and reporting it for inheritance tax.
- Collecting in money and assets.
- Paying debts and liabilities.
- Distributing the estate in accordance with the will.
Executors only step into their role after death. Unlike attorneys, they have no authority during the deceased's lifetime.
Although both attorneys and executors handle someone else's affairs, their roles differ in several important ways:
1. Timing - Attorneys act during the donor's lifetime if they lose capacity, executors act only after death.
2. Authority - Attorneys are appointed under a lasting power of attorney, which is registered with the Office of the Public Guardian. Executors are appointed under a will, and their authority is confirmed by the probate registry.
3. Scope of powers - Attorneys manage day-to-day financial and personal matters while the donor is alive. Executors administer the estate, settle debts, and distribute inheritances once the person has passed away.
4. Duration - Attorneys' powers end at death; executors' powers begin at death.
5. Probate - Attorneys have no role in probate, whereas executors are central to it. Probate gives executors the legal right to act.
Yes. It is common for a trusted family member to be appointed both as attorney under a power of attorney and as executor in a will. For example, an adult child may be chosen to help a parent manage financial affairs during their lifetime if capacity is lost, and also to administer the estate after death.
However, it is important to remember that these are two separate roles governed by different laws. An attorney cannot continue managing finances after death. Their role ends immediately, and they must hand over control to the executors. Likewise, executors cannot act during someone's lifetime, even if they know they will be named in the will.
Probate only comes into play after death. Attorneys have no authority to deal with probate, but their actions during the donor's lifetime can affect the probate process later. For example, if attorneys have managed the donor's finances, executors will need to review those records when valuing the estate and preparing inheritance tax returns.
If attorneys have mismanaged funds, this may come to light during probate.
Executors may need to investigate and, in some cases, take legal action to recover money for the estate. This underlines the importance of attorneys keeping clear records and acting in the donor's best interests at all times.
Many families confuse the roles of attorney and executor. Some believe that if they have a power of attorney, they can continue managing affairs after death without the need for probate. This is not true. Probate is still required in most cases where the estate contains property, investments, or substantial assets.
Another common misunderstanding is that executors can step in during the testator's lifetime to help manage affairs. Executors have no legal power until the testator has died and a grant of probate is obtained.
Understanding the distinction is vital. Failing to recognise when one role ends and the other begins can cause delays, disputes, and legal problems.
Disputes sometimes arise at the point of transition between attorney and executor. Family members may accuse attorneys of mismanaging funds before death, reducing the value of the estate. Executors, who are responsible for ensuring the estate is distributed properly, may then challenge the attorney's actions.
Conversely, attorneys who have acted diligently may face criticism from beneficiaries who are unhappy with the state of the estate when probate begins. These disputes fall under the category of contentious probate and can end up in court if not resolved amicably.
To minimise conflict, attorneys should maintain thorough records of all decisions and transactions. Executors should review these records carefully during probate to ensure transparency and accuracy.
Because these roles are so important, choosing the right people is crucial. Attorneys should be trustworthy, reliable, and capable of managing day-to-day decisions. Executors should be organised, impartial, and willing to take on the responsibility of probate, which can be time-consuming and complex.
Some people choose to appoint the same person as both attorney and executor for continuity. Others prefer to separate the roles, appointing family members as attorneys and professional executors, such as solicitors, to handle probate. The best approach depends on the complexity of the estate and family circumstances.
Power of attorney and executor are two distinct roles that apply at different stages of life and death. Attorneys manage affairs during the donor's lifetime if capacity is lost, while executors administer the estate after death through probate. Although the same person can hold both roles, their responsibilities are separate and do not overlap.
Understanding the distinction is vital for families, attorneys, and executors alike. It ensures that affairs are managed properly during life, that estates are administered efficiently after death, and that probate proceeds smoothly.
At Premier Solicitors, we regularly advise clients on both powers of attorney and probate. Whether you are setting up a lasting power of attorney, appointing executors in your will, or facing disputes between attorneys and executors, our experienced team can provide the guidance you need.
We also act as professional executors where appropriate, ensuring estates are administered impartially and efficiently. For families, this offers reassurance that both lifetime decisions and probate matters are handled with care and expertise.
If you would like clear, practical advice on powers of attorney, executors, or any aspect of probate, contact Premier Solicitors today. We can help you plan ahead, avoid disputes, and ensure that your wishes are respected at every stage.
For more information, please call us on 01234 358 080 or visit our contact page to send an enquiry form.
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