Understanding the Different Roles of a Will and a Power of Attorney in New York City
An important objective of New York estate planning is to ensure that there is someone who can act on your behalf when you are no longer capable of doing so. This includes not just managing your future probate estate but also situations where you may become incapacitated while still living. That is why it is important to have both a will and a power of attorney.
A power of attorney authorizes someone to act on your behalf while you are still alive. You can structure the power of attorney to take effect only upon your physical or mental capacity. Once you die, however, the power of attorney no longer has legal effect. Any property held in your name at the time of your death must be administered by the personal representative (executor) of your estate.
Non-Attorneys Cannot Represent Estates in Court
In the absence of an estate plan, a court can step in and appoint a guardian, personal representative, or similar fiduciary. But this can lead to confusion, especially when a family member is named to a role they were not properly equipped to handle. Ideally, such fiduciaries would seek legal advice and representation from a qualified attorney.
Unfortunately, that is not always the case. An ongoing lawsuit here in New York City, Williams v. TD Bank, NA, offers a cautionary example. This case involves the estate of Gus Williams, a former NBA player who won a championship as a member of the Seattle SuperSonics in 1979. Williams died in January 2025 at an assisted care facility in Maryland, where he’d lived since suffering a stroke five years earlier.
Eight months after Gus Williams’ death, his brother filed a lawsuit in Manhattan federal court against TD Bank. The lawsuit alleged that TD Bank improperly seized and auctioned off the contents of a safe deposit box that belonged to Gus Williams and his mother. The box allegedly contained, among other things, Williams’ NBA championship ring.
Williams’ brother believed that he had the authority to act in this matter because a South Carolina probate court had previously named him Gus Williams’ co-guardian. As the New York federal judge overseeing the TD Bank lawsuit explained, however, any authority that the brother held as guardian expired upon Gus Williams’ death. And the brother had not established that he was the personal representative or administrator of the Williams estate, which would have to be administered in Maryland.
Even if the brother was the executor of his brother’s estate, he also attempted to act pro se, meaning he was not represented by an attorney. The judge explained that under New York law, a non-attorney executor of an estate could not act pro se in bringing litigation on the estate’s behalf. Indeed, the brother also claimed to act on behalf of his still-living mother, who was a joint owner of the safe deposit box. While the mother could represent herself, assuming she had legal capacity, the brother could not act without an attorney on her behalf, even if he was her legal guardian.
Contact a Brooklyn Estate Planning Lawyer Today
It is critical to make a comprehensive estate plan while you are still of sound mind and able to make your wishes known. If you need legal assistance from a qualified Brooklyn estate planning lawyer, contact Yeung & Associates, PLLC, today at 718-889-7568 to schedule a consultation.
Source:
scholar.google.com/scholar_case?case=3618786600306631109