No power of attorney after father died. Brother has taken over. Help!

Recently on our legal forum a user asked, “My father had a power of attorney designated but this person died before my father. Now, my father has passed away and my brother has taken over. What should happen and how can I make sure I will receive part of my father’s estate, especially his life insurance payout?”

What is the power of attorney?

First, let’s clear up a few issues. It’s important to understand the role of a power of attorney. A power of attorney is a person designated by an individual to perform certain tasks for them while they are living.

There are different types of power of attorneys- durable power of attorney, irrevocable power of attorney, or enduring power of attorney- but regardless of what type, their role terminates upon the grantor’s death.

So the fact that your father did not have a power of attorney at the time of his death is irrelevant to the real issue, which is that your brother is acting as the executor or trustee of your father’s estate when he may or may not legally have been assigned that role.

Executor vs. Trustee

Now, it is possible that your father appointed your brother as an executor or the trustee. If your father had a will he could have named your brother as the executor, which would put him in charge of probating the will and settling the estate under the court’s supervision. Assuming this is the case, your brother has the legal authority to gather the assets of the estate and sell them to pay your father’s creditors.

When all of your father’s debts, taxes, and administrative expenses have been paid, your brother then would have the legal authority to distribute your father’s assets according to the terms outlined by your father in his will.

You father may have also created a trust to hold his assets. In this case he could have named your brother the trustee. Depending on the type of trust, your brother may or may not have to go through probate to perform tasks similar to those of the executor. Regardless of whether the trust actions are subject to court supervision, as trustee, your brother would be legally bound to manage and distribute the assets as per the terms of the trust.

No will and no executor

There is also a chance, however, that your father did not have a will or trust. Your first step is to find out. If he had a will or trust you need to find out who was appointed trustee or executor. If no will or trust existed, you can ask the probate court to appoint one.

Probate courts appoint administrators based on state laws. Each state has their own order of priority, which could vary slightly by state. For example, some states will appoint the spouse or a person they nominate (assuming they do not want the role), followed by the deceased’s children, followed by the deceased’s mother or father, followed by their brothers or sisters, followed by grandchildren, and so on.

If your father did not have a spouse and it is just you and your brother, you should be on equal footing legally to petition to be the executor of your father’s estate. The court has a variety of factors they will consider when making their decision.

No assets only life insurance

Regardless of whether or not your father had a will or trust, another issue to consider is what may happen to the proceeds from your dad’s life insurance policy. Generally, assuming your father designated a beneficiary for his policy; the life insurance proceeds will not be part of your father’s estate and do not have to be probated. So even if your father did not have a will, this will not affect the life insurance distribution process.

For example, if you are named as the beneficiary for your dad’s life insurance you would receive the payout directly from the life insurance company, and the payout would not need to be probated, thus eliminating any control your brother may or may not think he has over the life insurance proceeds.