A legal question and answer column for seniors.

DEAR SENIORS LEGAL LINE:

For years I have been acting as my sister’s Power of Attorney for her financial and property matters, such as writing her checks and making sure her finances are in order. She drafted the Power of Attorney back in 1992. She passed away last week and I went to the bank to withdraw some money from her savings account in order to cover her funeral expenses. I was dismayed when the banker told me that I no longer had authority to do so, because I am not a co-owner of the account, and I am not a beneficiary of the account. When I presented the Power of Attorney I was told that it is no longer valid because my sister passed away. Is this true? If so, how am I going to pay for my sister’s funeral?

Signed, Bruno

DEAR BRUNO:

I am sorry to hear about your sister’s death and the troubles you are having in paying for her funeral. It is true that a Power of Attorney for Financial and Property Matters automatically becomes void upon the death of the principal. Your authority ended when your sister passed away. The banker is correct. In fact, the bank could be liable if they released money to you now that the Power of Attorney for Financial and Property Matters is void.

So, how do you get access to the bank account? The answer depends on what your sister owned at the time of her death and how she owned it. Because she did not have a joint owner or beneficiary on the account, ownership of the account will not happen automatically. In your situation, access to the money will either occur with an affidavit procedure or through a probate procedure. Your sister’s heirs may be able to collect the money without going to court by using a form entitled “Affidavit For Collection Of Personal Property” if she owned no real estate solely in her name and her titled personal property is worth less than $20,000. Titled personal property includes bank accounts, other financial accounts, and vehicles. If this fits your sister’s situation, 30 days after her death you can fill out the affidavit, sign it in front of a Notary Public, and provide it to the bank along with a

Certified Death Certificate. The bank can then give the money in the account to you.

A probate procedure will be necessary in order to gain access to the money in the account, if she owned more than $20,000 in titled personal property, or if she owned real estate in her name only. Your sister’s personal representative will start a probate proceeding by filing a petition with the Probate Court in the county where your sister lived at the time of her death. Probate generally has to be started within three years of a person’s death, and the proceedings may be informal or formal. If your sister had a Will, the Probate Court will use the Will to determine who will inherit her estate.

Keep in mind that before the heirs can take the money for themselves, either through the affidavit procedure or through probate, your sister’s bills will have to be paid. Certain debts have priority over other debts. The first bills to be paid are the reasonable funeral expenses of the deceased, followed by any federal debts and taxes, reasonable and necessary medical, hospital, or nursing home expenses of the last illness, including Medical Assistance repayment, etc. I suggest you consult with an attorney about paying your sister’s debts out of your sister’s estate.

As you can see, you may have to wait for some time before you can access your sister’s money to pay for her funeral bills. Most funeral homes are very understanding about these situations. In fact, I suspect this is why they wait 30 days for payment of the funeral bill. It could be that your sister had a prepaid burial plan or an insurance policy naming a funeral home. I recommend you look through her personal papers and/or call a few of the local funeral homes to see if they have any contracts with your sister. Of course, unless you personally agree to be liable for your sister’s funeral expenses under a funeral contract, you are not liable to personally pay for your sister’s funeral.

If your sister has no spouse with sufficient means to pay for a funeral, and nobody else wishes to voluntarily pay for your sister’s funeral, and your sister had no source of payment, the law provides that a very basic funeral be provided by the County. If the County later discovers that your sister had funds to pay for the funeral, the County may bring a claim

against her estate for repayment. Most family members would desire a more elaborate funeral rather than a basic funeral, but it is an option to consider.

I hope this information helps you deal with your sister’s passing.

This column is written by the Senior Citizens’ Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us for legal help or questions by writing to: Senior Citizens’ Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: www.lasnem.org. Reprint by permission only.