New York Surrogate's Court Procedure Act § 2309. Commissions of trustees under wills of persons dying, or lifetime trusts established, after August 31, 1956




1. On the settlement of the account of any trustee under the will of a person dying after August 31, 1956, or under a lifetime inter trust established after August 31, 1956, the court must allow to him his reasonable and necessary expenses actually paid by him and if he be an attorney of this state and shall have rendered legal services in connection with his official duties, such compensation for his legal services as shall appear to the court to be just and reasonable and in addition thereto it must allow to the trustee for his services as trustee a commission from principal for paying out all sums of money constituting principal at the rate of 1 per cent.

2. In addition to the commission allowed by subdivision 1 hereof a trustee shall be entitled to annual commissions at the following rates:

(a) $10.50 per $1,000 or major fraction thereof on the first $400,000 of principal.

(b) $4.50 per $1,000 or major fraction thereof on the next $600,000 of principal.

(c) $3.00 per $1,000 or major fraction thereof on all additional principal.

Such annual commissions shall be computed either on the value of the principal of the trust at the end of the period for which the commissions are payable or, at the option of the trustee, on the value of the principal of the trust at the beginning of such period, provided that the option elected by the trustee for the first period for which such commissions are payable shall be used during the continuance of the trust and shall be binding on any successor or substitute trustee or trustees.  In the case of a trust which prior to January 1, 1994 computed annual commissions on the basis of a 12 month period (other than a calendar year), the trustee's prior election of such 12 month period shall be binding unless, prior to January 1, 1995, the trustee makes a new election to compute annual commissions on the basis of a calendar year either on the value of the principal of the trust at the end of, or at the option of the trustee at the beginning of, the calendar year for which the commissions were payable, which new election shall be used during the remaining continuance of the trust and shall be binding on any successor or substitute trustee or trustees.  The computation shall be made on the basis of a 12-month period but the amount so computed payable to a trustee shall be proportionately reduced or increased for any payments made in partial distribution of the trust or the receipt of any additional property into the trust within such period and shall be proportionately reduced in any period for which such commissions are payable to the trustee if the period is less than 12 months.  For the purpose of computing the annual commissions the value of any principal asset when received by the trust shall be the presumptive value of the asset at the beginning and end of the period for which such commissions are payable.  In computing the value of the principal of the trust the trustee may use the presumptive value in respect of any principal asset or may use the actual value of the asset.  On the settlement of the account of the trustee any person interested may dispute the amount of any commission claimed or retained.  The burden of proving that the actual value of any principal asset differs from its presumptive value is upon the trustee or other person claiming the difference.

3. Unless the will or lifetime trust instrument otherwise explicitly provides the annual commissions allowed by subdivision 2 shall be payable one-third from the income of the trust and two-thirds from the principal of the trust.  However, in the case of a trust whose definition of income is governed by 11-2.4 of the estates, powers and trusts law or a charitable remainder annuity trust or a charitable remainder unitrust, as defined in section six hundred sixty-four of the Internal Revenue Code of nineteen hundred eighty-six, [FN1] as amended, such annual commissions shall be payable from the corpus of any such trust after allowance for the annuity or unitrust amounts and shall not be payable out of such annuity or unitrust amounts.

4. The commissions allowed by subdivision 2 may be retained by a trustee provided he furnishes annually as of a date no more than 30 days prior to the end of the trust year selected by the trustee, to each beneficiary currently receiving income, and to any other beneficiary interested in the income and to any person interested in the principal of the trust who shall make a demand therefor, a statement showing the principal assets on hand on that date, and at least annually or more frequently if the trustee so elects, a statement showing all his receipts of income and principal during the period with respect to which the statement is rendered including the amount of any commissions retained and the basis upon which the commissions were computed.  A trustee shall not be deemed to have waived any commissions by reason of his failure to retain them at the time when he becomes entitled thereto;  provided however that commissions payable from income for any given trust year shall be allowed and retained only from income derived from the trust during that year and shall not be supplied from income on hand in respect of any other trust year.  If a beneficiary receiving income does not desire to be furnished with any such statements his advice to the trustee to that effect in writing shall thereafter excuse the trustee from furnishing such statement to the beneficiary unless and until the beneficiary requests such annual statements from the trustee.

5. (a) During the continuance of a trust created solely for public, religious, charitable, scientific, literary, educational or fraternal uses and during the period of continuance of such a trust after the termination of a life use or uses the trustee shall be entitled to and may retain commissions from income in an amount annually equal to 6 per cent of income collected in each year.

(b) In the case of a trust created solely for public, religious, charitable, scientific, literary, educational or fraternal uses the trustee shall not be entitled to any commission from principal.

(c) In the case of such a trust which continues after the termination of the measuring life use or uses the trustee for the period of the measuring life use or uses shall be entitled to commissions from income and principal at the rates and according to the terms specified in subdivision 2 and except in respect of principal paid out to a charity or for charitable uses shall be entitled to a commission for distributing all sums of principal at the rate specified in subdivision 1.

6. (a) Subject to 2313 regarding multiple commissions of executors or trustees under wills of persons dying, or lifetime trusts established, after August 31, 1993, if the gross value of the principal of the trust accounted for amounts to $400,000 or more and there is more than 1 trustee each trustee is entitled to the full compensation for paying out principal allowed herein to a sole trustee unless there are more than 3, in which case the compensation to which 3 would be entitled must be apportioned among the trustees according to the services rendered by them respectively unless the trustees shall have agreed in writing among themselves to a different apportionment which, however, shall not provide for more than one full commission for any one of them.  If the gross value of the principal of the trust accounted for is:

(i) less than $100,000 and there is more than 1 trustee the full compensation for paying out principal allowed herein to a sole trustee must be apportioned among them according to the services rendered by them respectively, or

(ii) $100,000 or more but less than $400,000, each trustee is entitled to the full compensation for paying out principal allowed herein to a sole trustee unless there are more than 2 trustees in which case the full compensation for paying out principal allowed herein to 2 trustees must be apportioned among them according to the services rendered by them respectively,

unless the trustees shall have agreed in writing between or among themselves to a different apportionment which, however, shall not provide for more than one full commission for any one of them.

(b) Subject to 2313 regarding multiple commissions of executors or trustees under wills of persons dying, or lifetime trusts established, after August 31, 1993, if the value of the principal of the trust for the purpose of computing the annual commissions allowed by subdivision 2 amounts to $400,000 or more and there is more than one trustee each trustee is entitled to the full annual commission allowed herein to a sole trustee unless there are more than 3, in which case the annual commissions to which 3 would be entitled must be apportioned among the trustees according to the services rendered by them respectively unless the trustees shall have agreed in writing among themselves to a different apportionment which, however, shall not provide for more than one full annual commission for any one of them.  If the value of the principal for the purpose of computing the annual commission allowed by subdivision 2 amounts to:

(i) less than $100,000 and there is more than 1 trustee the annual commission allowed herein to a sole trustee must be apportioned among the trustees according to the services rendered by them respectively, or

(ii) $100,000 or more but less than $400,000, each trustee is entitled to the full annual commission allowed herein to a sole trustee unless there are more than 2 trustees in which case the full annual commissions allowed herein to 2 trustees must be apportioned among them according to the services rendered by them respectively,

unless the trustees shall have agreed in writing between or among themselves to a different apportionment which, however, shall not provide for more than one full annual commission for any one of them.  However, if from a trust having a value of $400,000 or more, or if from a trust having a value of $100,000, or more but less than $400,000, as the case may be, at the beginning of a trust year any payments in partial distribution of the trust shall be made during the trust year so as to reduce the trust to a value of less than $400,000 or $100,000, as the case may be, at the end of the trust year, then the annual commissions allowed herein shall, on a proportionate basis, be those allowed to trustees of a trust having a value of $400,000 or more, or of a trust having a value of $100,000 or more but less than $400,000, as the case may be, for the period from the beginning of the trust year to the date of the distribution and shall, on a proportionate basis, be those allowed to trustees of a trust having a value of either $100,000 or more but less than $400,000 or less than $100,000, as the case may be, for the remainder of the trust year and the part of such commissions payable from principal and computed from the beginning of the trust year to the date of distribution shall be charged ratably to the property remaining in the trust and to the property distributed from the trust on the basis of their respective values.  Further, if during a trust year additional property shall be received into a trust which had a value of less than $100,000, or into a trust which had a value of $100,000 or more but less than $400,000, as the case may be, at the beginning of the trust year, so that because of the additional property the trust has a value of $100,000 or more but less than $400,000, or of $400,000 or more, as the case may be, at the end of the trust year, then the annual commissions allowed herein shall, on a proportionate basis, be those allowed to trustees of a trust having a value of less than $100,000, or to trustees of a trust having a value of $100,000 or more but less than $400,000, as the case may be, for the period from the beginning of the trust year to the date of the receipt of the additional property and shall, on a proportionate basis, be those allowed to trustees of a trust having a value of $100,000 or more but less than $400,000, or of a trust having $400,000 or more, as the case may be, for the remainder of the trust year.

(c) Notwithstanding any provision of paragraphs (a) and (b) of this subdivision to the contrary, if during the continuance of a trust not measured at any time directly or indirectly by a life or lives or during the continuance of a trust after the termination of the measuring life or lives, the annual income of the trust amounts to $4,000 or more and there is more than 1 trustee, each trustee is entitled to the full commissions allowed under subdivision 5 to a sole trustee unless there are more than 2, in which case the commissions to which 2 trustees would be entitled must be apportioned among the trustees according to the services rendered by them respectively unless they shall have agreed in writing among themselves to a different apportionment which, however, shall not provide for more than one full commission to any one of them.  If the annual income of the trust amounts to less than $4,000 and there is more than 1 trustee the commissions to which a sole trustee would be entitled under subdivision 5 must be apportioned among the trustees according to the services rendered by them respectively unless they shall have agreed in writing among themselves to a different apportionment.

7. Where a trustee is for any reason entitled or required to collect the rents of and manage real property the net amount of rents collected and not the gross amount shall be used in making computation of commissions allowed by subdivision 5 and in addition to the commissions herein provided he shall be allowed and may retain for such services 6 per cent of the gross rents collected, but there shall be only one such additional commission regardless of the number of trustees.  If there are 2 or more trustees the additional commission herein provided for must be apportioned among them according to the services rendered by them respectively unless they shall have agreed in writing among themselves to a different apportionment.

8. If a trustee is either authorized or required by the terms of the will to accumulate income for any purpose permitted by law he shall be entitled to commissions from the income so accumulated, including income derived from the investment of such accumulated income, at the rate of 2 per cent of the first $2,500 of such income distributed during the administration of the trust and 1 per cent of all such income distributed in excess of $2,500 and he may retain such commissions at the time or times such income is distributed.

9. The value of any property to be determined in such manner as directed by the court and the increment thereof received, distributed or delivered, shall be considered as money in making computation of commissions.  Whenever any portion of the dividends, interests or rents payable to a trustee is required by any law of the United States or other governmental unit to be withheld by the person paying it for income tax purposes, the amount so withheld shall be deemed to have been collected.

10. Where the will provides a specific compensation for a trustee he is not entitled to any other allowances for his services.

11. For the purposes of this section, the term “trustee” shall mean any trustee who is not a corporate trustee provided, however, that as used in subdivision 6 of this section, the term trustee shall include a corporate trustee.

[FN1]

 26 USCA § 664.



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