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

UPDATED: Sep 30, 2022

Advertiser Disclosure

It’s all about you. We want to help you make the right legal decisions.

We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.

UPDATED: Sep 30, 2022Fact Checked

Get Legal Help Today

Compare Quotes From Top Companies and Save

secured lock Secured with SHA-256 Encryption

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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

Get Legal Help Today

Find the right lawyer for your legal issue.

secured lock Secured with SHA-256 Encryption