Dear Mr. Premack: I was handling a sale transaction for land as
Agent under a durable power of attorney. The land-owner (for whom I am
acting) died before the closing was finished. Would it be legal to
complete the deal? How many days does the power of attorney carry over
after death? – BH
The durable power of attorney (if it was written
to comply with Texas law) gave you authority to handle a wide variety of
transactions for the principal (the person for whom you were acting). The
statutory provisions include authority to handle real estate transactions,
including the sale of land.
You must, by law under the durable
power of attorney, be acting as representative for a living person. When
you actually sign a document for the principal, you sign the principal’s
name as though it was the principal signing (and you indicate that you are
acting as agent by including the phrase “acting by and through his agent”
or similar wording).
It is obvious that if the principal has died,
he would not be able to sign a document. If the principal cannot sign,
then the agent who represents the principal likewise cannot sign. A
durable power of attorney terminates the moment that the agent becomes
aware of the principal’s death.
That leaves only one situation
under which you might have acted after the moment of the principal’s
death: if you lacked “actual knowledge” that the principal had died. The
statute recites that “…the death of… a principal… does not revoke or
terminate the agency as to the attorney in fact… who without actual
knowledge of the termination of the power… by the principal’s death… acts
in good faith under or in reliance on the power.”
You know your
principal has died. Any additional action under the power of attorney
would be taken after you have actual knowledge of his death. Thus you
cannot legally take that action. The power of attorney does not carry over
after death for a set number of days. It expires the moment that the agent
becomes aware of the principal’s death.
What can you do instead?
The person who was nominated as Executor under the principal’s Last Will
and Testament must take the Will to probate court. Once the judge has
reviewed it, letters testamentary will be issued which authorize the
Executor to complete the transaction on behalf of the deceased principal.
There is another way the principal could have avoided this
situation. Instead of retaining ownership of the land and giving you power
of attorney, the principal could have created a revocable grantor trust
(often called a living trust). He would have then transferred land title
into the trust, and specified that upon his disability or death you would
take management authority as successor trustee. Under the terms of a
trust, you would then have legally retained authority to sell the land
whether the principal was alive or had died during the process.
How do I change deed when spouse
Dear Mr. Premack: My husband passed away in late 2008. The deed of the
house only has his name on it. He had no Will and nothing went thru
probate. How do I change the deed into my name? – PM
intestate, so Texas law determines the identity of his heirs. If he dies
without a Will, then under Texas law as his widow you only get the house
if he had no children or if all his children are also your children. If he
has any children from a prior marriage, then they (not you) inherit his
share of the house.
If you are the sole legal heir, the deed can
be changed in one of three ways: 1) If he has no debts except perhaps the
mortgage, and the total value of his assets (not including the value of
the house) is below $50,000 then you can use a “small estate affidavit”.
2) If he has unpaid debts and/or an estate larger than $50,000 (not
including the value of the house) then you can still file to become
administrator of his estate in the probate court. 3) You could file an
affidavit of heirship with the county clerk if you are willing to risk
someone challenging your ownership at some future date. Work with an
experienced probate attorney to select the correct approach under your