Jana Davis Lamanna is experienced in the areas of probate/trust/estate litigation, divorce/family law, probate administration, estate planning, guardianship and conservatorship law, and assisted reproductive technology law.
Estate planning can feel complex, especially when you encounter legal terms like Power of Attorney and Probate. Although both play critical roles in managing your affairs, they apply at different stages of life and serve very different purposes.
In Memphis and throughout Shelby County, understanding how these tools work and how they complement each other, can help you protect your assets, your health, and your loved ones.
In simple terms:
A Power of Attorney is a private legal document that gives another person (called your agent or attorney-in-fact) the authority to make decisions and act on your behalf.
The primary goal of a POA is to ensure your affairs can continue smoothly if you are unable to manage them yourself due to illness, injury, or incapacity.
In Tennessee, a POA is not filed with the court. It is a private agreement between you (the principal) and your chosen agent. However, it must meet the formalities set forth under Tennessee Code Annotated (T.C.A.) § 34-6-101 et seq., including proper execution and notarization.
Type | Description |
|---|---|
Durable Power of Attorney | Continues to be effective even if you become incapacitated. (Must expressly state that it is “durable” per T.C.A. § 34-6-102.) |
General Power of Attorney | Gives broad powers to handle all financial, legal, and property matters. |
Limited or Special Power of Attorney | Authorizes the agent to act only for specific tasks, such as selling a property or signing documents during your absence. |
Medical Power of Attorney (Health Care Agent) | Allows your agent to make health-care and treatment decisions if you can’t. Governed by the Tennessee Health Care Decisions Act (T.C.A. § 68-11-1801 et seq.). |
A POA automatically expires upon the principal’s death. At that point, the agent’s authority ends, and no further action can be taken under the POA. Handling of the estate transitions to the probate process.
Probate is the legal process that occurs after someone dies. It ensures the deceased’s debts are paid and their remaining property is distributed according to their will (or Tennessee’s intestacy laws if no will exists).
The probate court supervises the administration of the estate, verifying the will’s validity, appointing an executor, settling debts, and distributing assets to heirs or beneficiaries.
Probate is handled by the Shelby County Probate Court for residents of Memphis and surrounding areas. The process is public and must comply with the Tennessee Probate Code (T.C.A. Title 30) and local Shelby County rules.
For estates valued under $50,000 (excluding real estate), Tennessee allows a simplified procedure using a Small Estate Affidavit (T.C.A. § 30-4-101 et seq.).
This option can be filed in the Shelby County Probate Court to bypass full probate, provided specific conditions are met.
Feature | Power of Attorney (POA) | Probate |
|---|---|---|
Timing | Operates during your lifetime. | Begins after death. |
Purpose | Enables your chosen agent to handle financial, medical, or legal matters while you are alive. | Legally settles a deceased person’s estate, pays debts, and distributes assets. |
Authority Holder | Agent / Attorney-in-fact appointed by you. | Executor (if there’s a will) or Administrator (if there’s no will) appointed by the court. |
Court Involvement | Private document—generally no court oversight. | Public, court-supervised legal process. |
Legal Effect at Death | Terminates automatically when you die. | Commences automatically after death. |
Governing Law in TN | T.C.A. § 34-6-101 et seq. | T.C.A. Title 30 (Administration of Estates). |
Goal | Manage personal, medical, or financial affairs during incapacity. | Transfer and settle ownership of assets after death. |
No.
This is one of the most frequent misconceptions in estate planning. A Power of Attorney ceases to exist the moment the principal passes away. The agent cannot access bank accounts, sell property, or handle debts after that point.
Instead, the executor or administrator appointed through probate becomes the only legally recognized authority over the deceased person’s estate.
For Memphis and Shelby County residents, having both a Power of Attorney and a well-structured estate plan ensures seamless protection during life and after death:
If you reside in Memphis or Shelby County:
A local probate attorney can guide you through deadlines, filings, and help ensure assets are efficiently transferred to heirs or beneficiaries.
A Power of Attorney and probate serve different but equally vital roles in your life and legacy. By planning ahead, Memphis residents can protect their interests during life and ensure a smooth transition for loved ones afterward.
For guidance on creating your POA or navigating the probate process, contact a trusted Probate Lawyer in Shelby County at TN Probate Lawyer today.
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