2023 New York Laws › EPT - Estates, Powers and Trusts › Article 13 - Other Provisions Affecting Estates › Part 2 - Statute of Frauds Requirements › 13-2.3 - Powers of Attorney in Relation to Decedents' Estates Required to Be in Writing and Recorded

§ 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 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.