Can an Attorney for Property Keep Using the Bank Account After Death?

Your parent has died, and you still have the card, the online banking login or the paperwork that let you manage their money. It is tempting to keep paying a few bills from the account while the family sorts things out.

The difference between a power of attorney and an executor is the heart of the problem. This article explains why access that was proper last month may not be proper now, and what you should do right away.

Power of attorney versus executor: two different jobs

An attorney for property is someone the person appointed to manage their finances while they were alive. An executor, called an estate trustee in Ontario, is the person who deals with the estate after death. They may be the same individual, but the roles are separate and the authority comes from different sources.

Why continuing to use the account is risky

The key rule is simple: a continuing power of attorney terminates when the grantor dies. From that moment, the attorney's authority over the grantor's accounts ends. A withdrawal after that date is no longer made under the power of attorney.

The money also has a new home in law. The deceased's property vests in the personal representative as trustee for the persons beneficially entitled, subject to payment of debts. If you are not the estate trustee, or if the estate trustee has not yet been formally appointed, you are dealing with money that belongs to the estate and that others may be entitled to.

Beyond that, an attorney is a fiduciary who must act diligently and keep accounts of all transactions. Spending after death, even on something that feels reasonable like a utility bill or funeral cost, can be questioned later. Whether a particular payment is proper depends on the facts, and a lawyer can confirm where you stand.

• Authority over the accounts ended at death.
• The money now belongs to the estate, to be handled by the personal representative.
• Your transaction records may be reviewed, because the court may order an attorney's accounts passed.
• Beneficiaries or the executor may ask for explanations of payments, so unexplained transfers create friction.

What an attorney should do immediately

If you are the attorney and the grantor has died, the safest approach is to stop and document. Do not use cards, cheques or online banking for the deceased's account. You do not need to wait for a lawyer to take that first step.

Then identify who the estate trustee is. If the will names you, you may still need the court certificate before the bank deals with you; the certificate is normally needed where the deceased owned real property or assets held by a financial institution. The person named in the will typically applies for it. If someone else is named, they are the person to whom you will hand over the records.

On records, Ontario's regulation requires an attorney to retain accounts and records until certain events, including the incapable person's death and delivery of the accounts and records to the personal representative. In practice, that means gathering statements, receipts and a list of what you did, and passing it on.

What if you already used the account after death?

Do not try to hide or reverse things quietly. Write down what was paid, when, to whom and why, and keep the receipts. Tell the estate trustee openly. A court can order an attorney's accounts to be passed, and the attorney, the grantor or certain listed persons may apply. Being ready with clear records is far better than having to reconstruct them later.

Whether repayment, or anything else, is required depends on what happened. That is a question to take to a lawyer before you reply to any demand from family or the executor.

What to do next

• Stop all use of the deceased's accounts, cards and online banking.
• Make a list of every transaction since the death and keep the receipts.
• Find out who the estate trustee is and whether a certificate has been or will be applied for.
• Gather your accounts and records of transactions for the period you acted as attorney.
• Deliver the accounts and records to the personal representative once one is in place.
• Speak to a lawyer if any payment after death is likely to be questioned, or if family members are asking for explanations.

Frequently asked questions