N.Y. Estates, Powers & Trusts Law Section 13-2.3
Powers of attorney in relation to decedents’ estates required

§ 13-2.3 Powers of attorney in relation to decedents’ estates required to be in writing and recorded (a) Every power of attorney relating to an interest in a decedent’s estate and every conveyance or assignment of an interest in an estate, or similar instrument, which contains an express or implied authorization or delegation of power to act thereunder shall be in writing and acknowledged or proved in the manner prescribed by the laws of this state for the recording of a conveyance of real property and, subject to the rules or order of the surrogate hereinafter provided, shall be recorded in the office of the surrogate granting letters on such decedent’s estate or, if no such letters have been granted, in the office of the surrogate having jurisdiction to grant them. Such recording confers on the surrogate jurisdiction over the grantor of such power of attorney, the attorney in fact therein named and any other person acting thereunder. No attorney in fact named in any power of attorney or in such other instrument nor any person acting thereunder shall perform any act under such instrument unless it has been duly recorded.

(b)

The surrogate may:

(1)

Prescribe by rules of court or by order, consistent with the provisions of this section, the form, content, manner of execution and the conditions attached to the recording of every such instrument.

(2)

Inquire into and determine the validity of every such instrument and require proof of the amount of compensation or expenses charged or to be charged by the attorney in fact and every person acting thereunder.

(3)

In a proceeding authorized by SCPA 2112 or in any appropriate proceeding, fix and determine the validity and reasonableness of such compensation and expenses, whether or not the same have been previously fixed by agreement and whether or not fixed in the instrument so recorded, or otherwise.

(4)

Prescribe regulations and exact a bond or undertaking to assure the payment of funds to the principal.

(c)

Notwithstanding any provision contained therein, no power of attorney or other instrument which designates an agent to act for the principal shall be irrevocable, nor shall any agreement for the compensation of, or the payment of expenses by the attorney in fact or other person acting under the instrument create a power coupled with an interest in the subject matter of the agency or render the instrument irrevocable.

(d)

Nothing contained herein shall authorize the practice of law by an attorney in fact or other person acting under an instrument described in this section, who is not an attorney duly licensed to practice law in the state of New York.

(e)

Notwithstanding the provisions of any other statute or rule, no instrument containing a delegation of powers, assignment of interest, fee arrangement, or any instrument of like import created for the purpose of participating on behalf of an individual in any application seeking the recovery of property pursuant to Abandoned Property Law § 1416 (Restriction on agreement to locate and/or retrieve abandoned property)section fourteen hundred sixteen of the abandoned property law or section thirteen hundred ten of the surrogate’s court procedure act, nor any power of attorney, shall be accepted for filing or recording by the surrogate’s court of a particular county unless the amount at issue is in excess of one thousand dollars or a fiduciary, as that term is defined by subdivision twenty-one of section one hundred three of the surrogate’s court procedure act, has been appointed, or a proceeding for the appointment of a fiduciary is pending in such court. The provisions of paragraph (b) of this section shall apply to all instruments eligible for filing and recording hereunder.

Source: Section 13-2.3 — Powers of attorney in relation to decedents' estates required, https://www.­nysenate.­gov/legislation/laws/EPT/13-2.­3 (updated Sep. 26, 2014; accessed Nov. 25, 2023).

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Accessed:
Nov. 25, 2023

Last modified:
Sep. 26, 2014

§ 13-2.3’s source at nysenate​.gov

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