Will New York accept a Texas POA to transfer a property if my father is incapacitated?
Hi, I’m preparing an Affidavit of Survivorship on behalf of my father (who is in the hospital) with a Durable POA, since my mother passed away last week. This is for a property title in Queens, NY they jointly own. Will NY accept my DPOA signature?
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If valid in the state where it was executed, other states usually honor it (Full Faith and Credit (U.S. Constitution, Art. IV, § 1)). New York expressly recognizes out-of-state powers of attorney. Under New York General Obligations Law § 5-1501B(1)(d), a POA executed in another state is valid in New York if it complied with the laws of the state where it was executed.
If the POA will be used to convey real property, New York Real Property Law §§ 291 and 294 require that the POA (or a certified copy) be properly acknowledged and recorded in the county where the property is located when the deed is recorded.
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Hi, I’m preparing an Affidavit of Survivorship on behalf of my father (who is in the hospital) with a Durable POA, since my mother passed away last week. This is for a property title in Queens, NY they jointly own. Will NY accept my DPOA signature?
Where are you located? Laws vary by location.
My father and I live in Los Angeles, but the property is in Queens, NY.
Has anything been filed yet?
Nothing yet.
Anything else the lawyer should know?
No. We are also planning on filing a TODD.
Hi there! I’m Liz, an attorney. Was the Durable POA from California?
The DPOA was done in Texas where he lived prior.
Understood. Does he now lack mental capacity?
Yes. He is sedated in the hospital.
Did he have capacity when the POA was executed?
Yes, it was several years ago. Notarized with witnesses.
If valid in the state where it was executed, other states usually honor it (Full Faith and Credit (U.S. Constitution, Art. IV, § 1)). New York expressly recognizes out-of-state powers of attorney. Under New York General Obligations Law § 5-1501B(1)(d), a POA executed in another state is valid in New York if it complied with the laws of the state where it was executed.
If the POA will be used to convey real property, New York Real Property Law §§ 291 and 294 require that the POA (or a certified copy) be properly acknowledged and recorded in the county where the property is located when the deed is recorded.
Great. When I file online, should I include a copy of the DPOA?
Yes, include it to show your authority.
And we plan to file a TODD to avoid probate when my father passes. How long after filing the survivorship affidavit should I file the TODD? Could it be the same day?
There’s no required waiting time. It can be the same day.
I’m waiting for the certified copy of my mom’s death certificate. Can I file using a preliminary certificate from the mortuary? Will the county accept that?
They do need the certified copy.
Could I follow up later with the certified one? My dad is very sick and we’re still waiting for the mortuary to complete the death certificate.
Understood. You can still file his TODD even if the affidavit isn’t yet fully processed.
For the TODD, do I list him as widowed and then the beneficiaries?
Correct.
And if I don’t get the survivorship filed before he passes, is it still valid if I file it?
Correct.
Thank you!
You're very welcome!
Have a great day!
You too!
Elizabeth
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