As a Minnesota estate planning lawyer, I often receive questions about the roles and responsibilities of a Personal Representative (also known as executor) and Attorney-in-Fact (appointed in a Power of Attorney (POA)), especially in situations where a loved one is no longer living at home. A question I recently received encapsulates a common misunderstanding:
“My mom is in a nursing home and her house is sitting vacant. She named me as the Executor of her will, and I want to meet with a realtor to get it sold. I’m being told by the title agency that I don’t have the right to do that. How is that the case?”
Understanding the distinctions between a Personal Representative and Attorney-in-Fact can help clarify this situation.
Executor’s Role After Death
A Personal Representative or executor is a person appointed in a will to manage the deceased person’s estate after their death. This includes paying off debts, distributing assets to the beneficiaries, and, if necessary, selling property. However, the role of a Personal Representative only becomes effective after the person’s death.
Power of Attorney While Alive
If your mother is still alive, even though she is living in a nursing home, she is the only one who has the legal authority to sell her house unless she has granted someone Power of Attorney (POA). A POA is a legal document that gives someone else the authority to act on her behalf in legal or financial matters. The Attorney-in-Fact is the agent given authority under the POA. This can include selling property, provided the POA document grants that specific authority.
Seeking Guardianship or Conservatorship
If your mother doesn’t have a POA in place, or if it doesn’t grant you the specific authority to sell property, and she is not able to make decisions due to mental incapacity, you might need to seek guardianship or conservatorship. These are legal processes that grant you the authority to manage her affairs.
Consult with a Minnesota Estate Planning Lawyer
Understanding the legal intricacies of estate planning, including the roles of Personal Representatives and Attorneys-in-Fact, can be complex. As an experienced estate planning lawyer in Minnesota, I can guide you through these processes, ensuring you understand your rights, roles, and responsibilities. If you find yourself in a similar situation or have any questions, don’t hesitate to reach out to us at 763-244-2949 and schedule a free initial phone consultation.
