Legal Question in Wills and Trusts in Virginia
Withdrawal using POA after death
Shortly before my fathers death I was made financial durable power of attorney. The form I downloaded from a legal doc site says ''My death shall not revoke or terminate this agency as to my Agent or any other person who, without actual knowledge of my death, acts in good faith under this power of attorney.'' Which seemed to say to me that it continued after death. I made a withdrawal from his account the day after he died to cover funeral expenses. Now I learn that this was ''inappropriate'' and that the POA ends at death. I am also the executor of the estate. When I filed the inventory of accounts I used the balance at the time of his death, before the withdrawal. I have reciepts for all expenses paid, and I plan to deposit the left over funds into his estate account. The heirs know I made this withdrawal and have no concerns. MY QUESTION is, am I going to get in trouble from the courts when they audit the accounts when I can show all the accounting and the heirs are not concerned? If so, what can I do to correct the situation? The total assets for this estate are $160k.
2 Answers from Attorneys
Re: Withdrawal using POA after death
Should be no problem as long as the numbers presented to the commissioner of accounts in your final report bear out your claims. However, there should have been no need for this withdrawal as the funeral home could've waited for its money until you were officially appointed executor of the estate.
Re: Withdrawal using POA after death
First let me address the POA issue because SO OFTEN family members assume that having a POA means they are in control upon death.
The POA may have the power to survive after death, if it was written that way (not sure it will work), HOWEVER at that time the authority of the exeuctor (called personal representative or administrator in Virginia) kicks in upon death. If there is no will, then someone must go into court and "qualify" (become appointed) as executor.
So even though the POA may be valid in terms of a third party honoring it, you should defer to the executor under the will. The authority of the executor supersedes yours as the holder of the POA.
HOWEVER... You are talking about funeral expenses. That means these required immediate action (I assume), and could not wait. Therefore, I think that it is entirely appropriate, as long as the amounts are reasonable. You would then have to submit your report to the ultimate executor. Where something requires immediate action, and you fully report what you are doing, and you submit it to the executor for approval, this should be fine.
That is, a family member even WITHOUT a POA I think would be justified in paying an unavoidable, immediate expense. What, is he not going to get buried? Of course not. It has to be done, and it cannot wait.
The most important thing in filing the reports is to SHOW where all the money went. All the amounts must balance.
Almost certainly, no one is going to object to WHAT you spent the money on, as long as you REPORT where all the money went.
The Commissioner of Accounts' job is to make sure everything is transparent and reported so that everyone knows what happened.
If the heirs object to how the money was spent, it is up to them to object.
However,
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