How was my sister able to take my parents house with just a power of attorney?

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How was my sister able to take my parents house with just a power of attorney?

My sister and her husband have been able to take my parent’s property in
Delaware with just a power of attorney. She did not tell me that she and her
husband were claiming the property after my parents died. I was listed second on
the power of attorney. How was she able to do this this. My parents wanted any
assets to be equally divided between their children 4.

Thank you.

Patricia Lewis
New York, NY

Asked on August 28, 2016 under Estate Planning, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, she can't do this, and you can bring a lawsuit against them. A power of attorney ceases when the person(s) who created it pass away: powers of attorney have not power after death. So therefore, they could not legally transfer the home after your parents died using the POA (either she did not tell the clerk that your parents had died, or the clerk who handled the transfer made a rather significant mistake). 
Furthermore, an agent or attorney-in-fact (the person given power by the POA) cannot engage in self-dealing, or using the POA for his/her own benefit, against the wishes of the principal (person granting the power), so she also violated her "fiduciary duty" (the duty imposed on the wielder of a POA to act for the benefit of an in the interests of, following any instructions of, etc., the principal). So that is another reason she could not legally do this. 
Note that your parents wishes, unless they were expressed in a valid will (a will is the only document or set of instructions which can control what happens to a person's property after death), have no bearing on what happens now: oral or verbal wishes do not control. When there is no will, property passes according to your state's rules for "intestate succession," or who gets what when there is no will. Fortunately, in your state, what occurs in intestate succession happens to be what your parents wanted: the property, assets, etc. are divided evenly between the children, when there is no surviving spouse. 
So in sum: your sister cannot do what she did, and you can bring a lawsuit in probate or surrogate's court to undo it or otherwise get compensation.


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