Power of attorney of a co-heir

Testators often grant powers of attorney to close relatives during their lifetime so that they can support them in both financial and personal decisions or even make decisions for them. This is often achieved by means of a so-called general and precautionary power of attorney. This can - but does not have to - be certified or notarized by a notary.

For reasons of practicability, the power of attorney is often structured in such a way that it is valid beyond the death of the testator. In this case, the authorized representative can also represent the testator after their death and thus bridge the waiting period until the certificate of inheritance is issued.

There are pitfalls in the situation where the inheritance has been transferred to a community of heirs consisting of several persons, but only one of them has received a power of attorney from the testator; as a rule, these are siblings.

According to case law, the person who exercised the power of attorney is obliged to provide information to his or her co-heirs and if it turns out that he or she has incurred income or expenses on behalf of the testator that did not benefit him or her, he or she may be liable for damages. In this case, the community of heirs is entitled to a claim against the authorized co-heir.