QLD PoA acting as Executor

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29 June 2021
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My partner's mother passed away last month. In the 6 months before her passing, she gave POA to her nephew. There was confusion surrounding this decision, which led my partner and his sister to assume that the nephew was executor to the will. He was not.

When my partner's mother passed, the nephew carried out duties that are only the responsibility of the executor (arranged the funeral, cremated her body without asking my partner or his sister, withdrew money from her bank account). Upon confronting the nephew about his misrepresentation, he has now refused to show any PoA documentation.

My partner is trying to get information from the bank and crematorium and neither are being forthcoming (they have seen the Will with the executors name). To clarify, my partner's sister is the executor named in his mother's Will and they have the original Will in their possession.

To me this seems like both a civil and criminal matter, but it seems that no lawyers or the police in town want to touch them. Help?
 
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Tim W

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28 April 2014
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A couple of things....

1. A Power of Attorney expires (the act says "is revoked") at the moment of death.
That means that whatever powers the person (in this case, the nephew) had
in the course of the Power Of Attorney no longer have effect. Gone. Finished. No ifs or buts.
Lots of outgoing Power of Attorney holders don't understand that, and some who do,
being used to the power trip, refuse to accept the reality

Beware of the term "next of kin".
Outside of a narrow technical definition in Coronial practice, that term has no meaning at law,
but you hear it widely in the context of a death.
Usually around who makes decisions that lead to Tax Invoices with Really Big Numbers on them.

Why this matters is because not even a properly appointed executor (and certainly not a former POA holder)
cannot can other relatives to incur expenses or debts to which those relatives have not consented.

Further, an purported executor cannot contract on behalf of others.
The classic example of which is making all the children the joint customers of the funeral director,
without actually telling them first.
Thing is, the funeral directors, and the stone mason, and the cemetery/ crematorium operator
don't much care about who is who, and who is properly appointed and who is not.
They just want the money.

2. It's important to understand that the executor is appointed by the Grant of Probate.
Merely being nominated in the will is not enough.
Even if the nephew held a properly executed Power of Attorney,
that expired at the moment of her death.

3. A Power of Attorney Holder does not automatically become the executor,
and has no right to become the executor.
The Power of Attorney holder and the executor don't even have to be the same person.

4. As a general principle, the executor* can use the corpus** of the estate to pay for the funeral.
That assumes, of course, that there is enough money/ assets to cover the cost.
If not, then unless other people (which need not be relatives) choose to pay for things themselves,
the deceased has a more modest funeral.

One thing the executor can do is deduct the cost of the funeral from the value of the estate before any distribution is made.
It's just another bill, along with the last phone bill, paying off the deceased's credit cards etc.


------------------------------
* or in an intestacy, the Legal Personal Representative
** the money, and anything that can be turned into money by being sold
 
Last edited by a moderator:
29 June 2021
2
2
1
A couple of things....

1. A Power of Attorney expires (the act says "is revoked") at the moment of death.
That means that whatever powers the person (in this case, the nephew) had
in the course of the Power Of Attorney no longer have effect. Gone. Finished. No ifs or buts.
Lots of outgoing Power of Attorney holders don't understand that, and some who do,
being used to the power trip, refuse to accept the reality

Beware of the term "next of kin".
Outside of a narrow technical definition in Coronial practice, that term has no meaning at law,
but you hear it widely in the context of a death.
Usually around who makes decisions that lead to Tax Invoices with Really Big Numbers on them.

Why this matters is because not even a properly appointed executor (and certainly not a former POA holder)
cannot compel other relatives to incur expenses or debts to which those relatives have not consented.

Further, an purported executor cannot contract on behalf of others.
The classic example of which is making all the children the joint customers of the funeral director,
without actually telling them first.
Thing is, the funeral directors, and the stone mason, and the cemetery/ crematorium operator
don't much care about who is who, and who is properly appointed and who is not.
They just want the money.

2. It's important to understand that the executor is appointed by the Grant of Probate.
Merely being nominated in the will is not enough.
Even if the nephew held a properly executed Power of Attorney,
that expired at the moment of her death.

3. A Power of Attorney Holder does not automatically become the executor,
and has no right to become the executor.
The Power of Attorney holder and the executor don't even have to be the same person.

4. As a general principle, the executor* can use the corpus** of the estate to pay for the funeral.
That assumes, of course, that there is enough money/ assets to cover the cost.
If not, then unless other people (which need not be relatives) choose to pay for things themselves,
the deceased has a more modest funeral.

One thing the executor can do is deduct the cost of the funeral from the value of the estate before any distribution is made.
It's just another bill, along with the last phone bill, paying off the deceased's credit cards etc.


------------------------------
* or in an intestacy, the Legal Personal Representative
** the money, and anything that can be turned into money by being sold
Thank you so much for that information.

It just confirms for us that the nephew has been acting fraudulently, and quite possibly even before, my partner's mother passed. They are trying to pursue this as a criminal matter but the police don't seem too interested. And now the police are saying that my partner needs to have a lawyer for them to proceed.

Its certainly been a minefield to navigate to this point. This has been largely over my partner's head, and my undergrad at Uni studying some contract and commercial law, and my honed skills ferreting for info, has gotten us this far but I'm beat now. Its discouraging that unless you have a nest egg to pay lawyers fees, there seems that there is no help available for the average Joe.

Again, appreciate you responding.
 
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