N.Y. Estates, Powers & Trusts Law § 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 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.