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Can a durable power of attorney be used to sell real estate after the owner's death in Utah?

This is a common question, based on a common misconception that a durable power of attorney remains in effect after the principal's death.  Under Utah law, a durable power of attorney differs from an ordinary power of attorney in that the durable power of attorney remains valid in the event that the principal becomes mentally incapacitated or disabled.  Under an ordinary power of attorney, the agent (sometimes called the "attorney-in-fact") loses authority to act for the principal if the principal becomes mentally incapacitated.  But both an ordinary power of attorney and a durable power of attorney become void upon the death of the principal.

In order to sell real estate owned in Utah by someone who has died, a court must appoint a personal representative to act on behalf of the decedent's estate.  An experienced Utah probate attorney can often help obtain the appointment of a personal representative without a "formal" probate action.  But the appointment of a personal representative and the issuance of letters testamentary (or letters of administration if the person died without a will) still requires the filing of a petition with the court and a determination of facts (or "findings") to be made by the registrar of the court.

Contact us today for an initial consultation with Utah probate attorney Stephen Howard regarding the process of obtaining an appointment as personal representative in Utah.


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Canyons Law Group, LLC | 952 S. Main St., Suite A | Layton, UT 84041

by Stephen W. Howard, P.C.

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