A Lasting Power of Attorney (LPA) can be an essential legal tool when it comes to managing someone’s decisions related to finance or health.
An LPA enables a designated individual – the attorney – to make decisions on behalf of the person who grants the power, known as the donor.
However, it’s a common misconception that having an LPA in place negates the need for probate (the legal process of a court validating a will), after the donor’s death.
In this article, we’ll clarify the roles of both an LPA and probate, explaining why they are not interchangeable and why probate is still necessary after someone’s passing.
Lasting Power of Attorney (LPA) vs a probate: What’s the difference?
A Lasting Power of Attorney (LPA) and probate are two distinct legal processes. Each serves different purposes.
While an LPA is used for managing someone’s affairs during their lifetime, a probate is necessary when dealing with the deceased person’s estate after their death.
Let’s hone in on these two processes:
What is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney (LPA) grants authority to an individual (the attorney) to make decisions on behalf of the donor while they are alive.
There are two main types of LPA: One concerns financial and property matters, while the other relates to health and welfare decisions.
Until a donor becomes incapacitated or otherwise unable to make decisions for themselves, the donor remains in control of their affairs. When they are no longer able to make decisions, the attorney steps in to act on their behalf.
What is probate?
Probate is a legal process that ensures a deceased person’s will is validated and their estate is administered.
This process involves the collection of assets, paying off of any debts or taxes, and distribution of the remaining assets according to the will. If no will exists, assets will be distributed in accordance with the rules of intestacy (an order of priority in UK law, in the case of there being no will).
Probate is handled by the person who is named executor in the will or, if no will exist, a personal representative appointed by the court.
Does having an LPA eliminate the need for probate?
As we’ve touched upon already, having an LPA does not eliminate the need for probate after the donor’s death.
It is important to understand that the authority granted by an LPA is valid only during the donor’s lifetime. The moment the donor passes away, the attorney’s role under the LPA comes to an end. This means that an attorney cannot manage or distribute the deceased person’s estate after death.
The deceased person’s estate must go through the probate process in order to validate the will and ensure that the estate is distributed according to the donor’s wishes. Even if someone has had an attorney managing their affairs under an LPA, probate is still required after death.
The role of probate in estate administration
Once the donor has passed away, their estate becomes subject to the probate process.
If there is a valid will, the executor that has been named in the will is responsible for applying for probate. If there is no will, the court will appoint a personal representative to act on behalf of the deceased. The executor or personal representative will then manage the estate, which includes asset collection, debt payment and asset distribution according to the instructions in the will (or rules of intestacy).
The probate process can be complex, especially with multiple assets, beneficiaries, or outstanding liabilities. Probate provides the legal authority to handle these matters, and ensures that the estate is managed properly and legally.
Why is probate still necessary after the death of the donor?
After a person’s death, their assets become part of their estate. Even if an attorney has been managing the donor’s financial matters through an LPA, the estate still requires the probate process to be properly administered.
The probate process ensures that the deceased person’s assets are identified, debts are settled, and any remaining funds are distributed to the correct beneficiaries. Without probate, there is no formal legal process for transferring assets or ensuring that debts are paid.
