S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9879

                          I N  A S S E M B L Y

                             April 22, 2016
                               ___________

Introduced  by M. of A. BUCHWALD, WEINSTEIN -- (at request of the Office
  of Court Administration) -- read once and referred to the Committee on
  Judiciary

AN ACT to amend the surrogate's court procedure act, in relation to  the
  commissions of donees of a power in trust, including donees of a power
  during minority

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 2306 of the  surrogate's  court  procedure  act  is
amended to read as follows:
S 2306. Annual statements to be furnished to beneficiaries
  Any  trustee,  DONEE OF A POWER DURING MINORITY OR DONEE OF A POWER IN
TRUST who is not required to furnish annual statements under either 2308
or 2309 because he OR SHE has  not  retained  annual  commissions  shall
nevertheless be required to furnish the annual statements referred to in
those  sections to any beneficiary receiving income or any person inter-
ested in the principal of the trust who shall request  such  statements,
OR IN THE CASE OF A POWER DURING MINORITY OR OF A POWER IN TRUST, TO THE
BENEFICIARY  OF THE POWER IN TRUST, OR TO A PERSON TO WHOM A PAYMENT NOT
EXCEEDING $10,000 COULD BE MADE UNDER SUBDIVISION 1 OF SECTION  2220  OF
THIS CHAPTER.
  S  2.  The  opening  paragraph of subdivision 1 of section 2307 of the
surrogate's court procedure act, as amended by chapter 474 of  the  laws
of 1994, is amended to read as follows:
  Except  as  otherwise provided in paragraph (f) of this subdivision on
the settlement of the account of any fiduciary other than a  trustee,  A
DONEE  OF  A  POWER  DURING MINORITY OR A DONEE OF A POWER IN TRUST, the
court must allow to him OR HER the  reasonable  and  necessary  expenses
actually  paid  by  him  OR  HER and if he OR SHE be an attorney of this
state and shall have rendered legal services in connection with  his  OR
HER  official duties, such compensation for his OR HER legal services as
appear to the court to be just and reasonable and in addition thereto it
must allow to the fiduciary for his OR HER services as fiduciary, and if

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08900-01-5
              

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there be more than one, apportion among them according to  the  services
rendered by them respectively the following commissions:
  S  3. Section 2308 of the surrogate's court procedure act, the section
heading and subdivision 1, as amended by chapter  503  of  the  laws  of
1980, paragraph (c) of subdivision 1 as added by chapter 376 of the laws
of  2001,  subdivision  2 as amended by chapter 654 of the laws of 1993,
subdivision 3 as amended by chapter 243 of the laws  of  2001,  subdivi-
sions  4, 6, 7 and paragraph (d) of subdivision 9, as amended and subdi-
vision 12 as added by chapter 237 of the laws of 1978, paragraph (a)  of
subdivision  5  as amended and subdivision 13 as added by chapter 936 of
the laws of 1984, paragraphs (a) and (b) of subdivision 6, as amended by
chapter 245 of the laws of 1991, and subdivision 8 as amended by chapter
685 of the laws of 1967, is amended to read as follows:
S 2308. Commissions of trustees, DONEES OF  POWER  DURING  MINORITY  AND
          DONEES  OF  POWERS  IN  TRUST under wills of persons dying, or
          under lifetime trusts created, on or before August 31, 1956
  1. On the settlement of the account of any trustee OR DONEE  OF  POWER
IN  TRUST under the will of a person dying on or before August 31, 1956,
or under a lifetime trust established on or before August 31, 1956,  the
court must allow him OR HER his OR HER reasonable and necessary expenses
actually  paid  by  him  OR  HER and if he OR SHE be an attorney of this
state and shall have rendered legal services in connection with  his  OR
HER  official duties, such compensation for his OR HER legal services as
shall appear to the court to be just  and  reasonable  and  in  addition
thereto  it  must  allow  to the trustee OR TO THE DONEE OF THE POWER IN
TRUST for his OR HER services as trustee OR DONEE OF THE POWER IN  TRUST
the  following  commissions  from TRUST principal OR PROPERTY SUBJECT TO
THE POWER IN TRUST:
  (a) For receiving principal OR PROPERTY SUBJECT TO THE POWER IN TRUST
  (1) all sums of money constituting principal OR  PROPERTY  SUBJECT  TO
THE POWER IN TRUST not exceeding $2,000 at the rate of 3 per cent;
  (2)  all additional sums of principal OR PROPERTY SUBJECT TO THE POWER
IN TRUST not exceeding $10,000 at the rate of 1 1/2 per cent;
  (3) all sums of principal OR PROPERTY SUBJECT TO THE  POWER  IN  TRUST
above $12,000 at the rate of 1 1/4 per cent; and
  (b) For paying out principal OR PROPERTY SUBJECT TO THE POWER IN TRUST
at the rate of 1 per cent.
  (c)  Notwithstanding the provisions of section 8 of chapter 237 of the
laws of 1978, commissions provided by paragraph (a) of this  subdivision
for  receiving principal OR PROPERTY SUBJECT TO THE POWER IN TRUST shall
not be allowed to a trustee OR DONEE OF A POWER IN TRUST  who  qualifies
to  act  as  such  on or after June 5, 1978, and shall not be allowed on
additions of property received on or after June 5,  1978;  such  commis-
sions  on  any  increments in property that are payable by reason of any
sale, exchange or liquidation of such property shall be allowed  on  the
lesser  of  (1)  the  amount  of  such  increments  on the date of sale,
exchange or liquidation of such property and  (2)  the  amount  of  such
increments  on  June  5, 1978; and such commissions on any increments in
property that are payable by reason of any distribution of such property
shall be allowed on the lesser of (1) the amount of such  increments  on
the  date  of  distribution  of such property and (2) the amount of such
increments on the effective date of this paragraph.
  2. In addition to the commission allowed by subdivision one a  trustee
OR  A  DONEE OF A POWER IN TRUST shall be entitled to annual commissions
at the following rates:

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  (a) $10.50 per $1,000 or major fraction thereof on the first  $400,000
of principal OR PROPERTY TO THE POWER IN TRUST;
  (b) $4.50 per $1,000 or major fraction thereof on the next $600,000 of
principal OR PROPERTY SUBJECT TO THE POWER IN TRUST; and
  (c) $3.00 per $1,000 or major fraction thereof on all additional prin-
cipal OR PROPERTY SUBJECT TO THE POWER IN TRUST.
  Such  annual  commissions shall be computed either on the value of the
principal of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN  TRUST
at  the  end  of the period for which the commissions are payable or, at
the option of the trustee OR OF THE DONEE OF THE POWER IN TRUST, on  the
value  of  the  principal of the trust OR OF THE PROPERTY SUBJECT TO THE
POWER IN TRUST at the beginning of such period, provided that the option
elected by the trustee OR OF THE DONEE OF THE POWER  IN  TRUST  for  the
first period for which such commissions are payable shall be used during
the continuance of the trust OR OF THE POWER IN TRUST and shall be bind-
ing  on  any successor or substitute trustee or trustees OR SUCCESSOR OR
SUBSTITUTE DONEES OF THE POWER IN TRUST.   In the case  of  a  trust  OR
POWER  IN  TRUST  which prior to January 1, 1994 computed annual commis-
sions on the basis of a 12 month period (other than  a  calendar  year),
the trustee's OR DONEE'S prior election of such 12 month period shall be
binding  unless,  prior to January 1, 1995, the trustee OR DONEE 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 OR OF THE PROPER-
TY  SUBJECT TO THE POWER IN TRUST at the end of, or at the option of the
trustee OR DONEE OF THE POWER IN TRUST 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 OR OF  THE  POWER  IN
TRUST  and  shall  be  binding on any successor or substitute trustee or
trustees OR DONEE OR DONEES OF THE POWER IN TRUST. The computation shall
be made on the basis of a 12 month period but  the  amount  so  computed
payable  to  a trustee OR DONEE OF A POWER IN TRUST shall be proportion-
ately reduced or increased for any payments made in partial distribution
of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN TRUST or receipt
of any additional property into the trust OR BY THE DONEE OF A POWER  IN
TRUST  within  such  period  and shall be proportionately reduced in any
period for which such commissions are payable to the trustee OR DONEE OF
THE POWER IN TRUST 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 OR BY THE DONEE OF A POWER IN TRUST shall be
the presumptive value of the asset at the beginning and end of the peri-
od for which such commissions are payable. In computing the value of the
principal of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN  TRUST
the  trustee  OR THE DONEE OF THE POWER IN TRUST 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 OR OF THE
DONEE OF A POWER IN TRUST 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,  THE DONEE OF THE POWER IN TRUST or other person
claiming the difference.
  3. Unless the will otherwise explicitly provides, the  annual  commis-
sions  allowed  by subdivision two of this section shall be payable one-
third from the income of the trust OR OF THE  PROPERTY  SUBJECT  TO  THE
POWER  IN  TRUST  and two-thirds from the principal of the trust OR FROM
THE PROPERTY SUBJECT TO THE POWER IN TRUST.  However, in the case  of  a
trust  whose  definition of income is governed by 11-2.4 of the estates,

A. 9879                             4

powers and trusts law, such annual commissions shall be payable from the
corpus of any such trust after allowance for  the  unitrust  amount  and
shall not be payable out of such unitrust amount.
  4. The commissions allowed by subdivision 2 may be retained by a trus-
tee  OR  DONEE OF A POWER IN TRUST provided he OR SHE furnishes annually
as of a date not more than 30 days prior to the end of  the  trust  year
selected  by  the  trustee  OR  THE  CALENDAR  YEAR, 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 OR TO THE BENEFICIARY OF THE  POWER  IN
TRUST  WHO SHALL MAKE A DEMAND THEREFOR, a statement showing the princi-
pal assets OR THE PROPERTY SUBJECT TO THE POWER IN TRUST on hand on that
date, and at least annually or more frequently if the trustee  OR  DONEE
OF  A  POWER  IN  TRUST  so  elects,  a statement showing all his OR HER
receipts of income and principal OR PROPERTY SUBJECT  TO  THE  POWER  IN
TRUST  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 OR DONEE OF A POWER IN
TRUST shall not be deemed to have waived any commissions  by  reason  of
his  OR  HER  failure  to retain them at the time when he OR SHE becomes
entitled thereto; provided however that commissions from income for  any
given  trust  OR  CALENDAR  year shall be allowed and retained only from
income derived from the trust OR FROM THE PROPERTY SUBJECT TO THE  POWER
IN  TRUST during that year and shall not be supplied from income on hand
in respect of any other trust OR CALENDAR year. If a beneficiary receiv-
ing income does not desire to be furnished with any such  statement  his
OR  HER  advice  to the trustee OR TO THE DONEE OF THE POWER IN TRUST to
that effect in writing shall thereafter excuse the trustee OR  DONEE  OF
THE  POWER  IN  TRUST  from furnishing such statement to the beneficiary
unless and until the beneficiary requests such  annual  statements  from
the trustee OR DONEE OF THE POWER IN TRUST.
  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, char-
itable, 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 a life use or uses the trustee for the period of the  measuring  life
or  lives  shall be entitled to commissions from income and principal at
the rates and according to the terms otherwise provided in this section,
except that he OR SHE shall not  be  entitled  to  any  commissions  for
paying out any amount of principal.
  6.  (a) If  the  gross  value  of the principal of the trust OR OF THE
PROPERTY SUBJECT TO THE POWER IN TRUST accounted for amounts to $400,000
or more and there is more than 1 trustee OR DONEE OF THE POWER IN TRUST,
each trustee OR DONEE OF THE POWER IN TRUST  is  entitled  to  the  full
compensation  for receiving and paying out principal OR PROPERTY SUBJECT
TO THE POWER IN TRUST allowed herein to a sole trustee OR DONEES OF  THE
POWER  IN  TRUST unless there are more than 3, in which case the compen-
sation to which 3 would be entitled must be apportioned among the  trus-
tees  OR DONEES OF THE POWER IN TRUST according to the services rendered
by them respectively, unless the trustees OR  DONEES  OF  THE  POWER  IN

A. 9879                             5

TRUST  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 OR OF THE PROPERTY SUBJECT TO THE POWER IN TRUST accounted for
is:
  (i)  less  than  $100,000 and there is more than 1 trustee OR DONEE OF
THE POWER IN TRUST the full compensation for receiving  and  paying  out
principal  OR PROPERTY SUBJECT TO THE POWER IN TRUST allowed herein to a
sole trustee OR DONEE OF THE POWER IN TRUST 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 OR DONEE OF
THE  POWER  IN  TRUST is entitled to the full compensation for receiving
and paying out principal OR PROPERTY  SUBJECT  TO  THE  POWER  IN  TRUST
allowed  pursuant  to this subdivision to a sole trustee OR DONEE OF THE
POWER IN TRUST unless there are more than 2 trustees OR  DONEES  OF  THE
POWER  IN TRUST in which case the full compensation for paying out prin-
cipal OR PROPERTY SUBJECT TO THE POWER IN TRUST allowed pursuant to this
subdivision to 2 trustees OR DONEES OF THE POWER IN TRUST must be appor-
tioned among them according to the services rendered by them respective-
ly,
unless the trustees OR DONEES OF THE POWER IN TRUST 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) If  the  value  of  the  principal of the trust OR OF THE PROPERTY
SUBJECT TO THE POWER IN 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 OR DONEE OF  THE  POWER  IN  TRUST,  each
trustee  OR  DONEE  OF THE POWER IN TRUST is entitled to the full annual
commission allowed herein to a sole trustee OR DONEE  OF  THE  POWER  IN
TRUST unless there are more than 3, in which case the annual commissions
to  which  3 would be entitled must be apportioned among the trustees OR
DONEES OF THE POWER IN TRUST according to the services rendered by  them
respectively,  unless the trustees OR DONEES OF THE POWER IN TRUST shall
have agreed in writing among themselves  to  a  different  apportionment
which,  however, shall not provide for more than one full annual commis-
sion for any one of them. If the value of the principal OR OF THE  PROP-
ERTY  SUBJECT  TO  THE  POWER  IN TRUST 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  OR  DONEE  OF
THE  POWER  IN  TRUST, the annual commissions from income and the annual
commission allowed herein to a sole trustee OR DONEE  OF  THE  POWER  IN
TRUST  must  be  apportioned among the trustees OR DONEE OF THE POWER IN
TRUST according to the services rendered by them respectively, or
  (ii) $100,000 or more but less than $400,000, each trustee OR DONEE OF
THE POWER IN TRUST is entitled to the  full  annual  commission  allowed
pursuant  to this subdivision to a sole trustee OR DONEE OF THE POWER IN
TRUST unless there are more than 2 trustees OR DONEES OF  THE  POWER  IN
TRUST in which case the full annual commissions allowed pursuant to this
subdivision to 2 trustees OR DONEES OF THE POWER IN TRUST must be appor-
tioned among them according to the services rendered by them respective-
ly,
unless the trustees OR DONEES OF THE POWER IN TRUST 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 OR FROM PROPERTY SUBJECT TO A

A. 9879                             6

POWER IN TRUST having a value of $400,000 or more, or if from a trust OR
FROM  PROPERTY SUBJECT TO A POWER IN 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 OR OF THE CALENDAR YEAR IN THE CASE OF A POWER IN TRUST, any
payments in partial distribution of the trust OR OF THE PROPERTY SUBJECT
TO THE POWER IN TRUST shall be made during the trust OR CALENDAR year so
as to reduce the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN  TRUST
to a value of less than $400,000 or $100,000, as the case may be, at the
end  of  the  trust OR CALENDAR year, then the annual commission allowed
herein shall, on a proportionate basis, be those allowed to a trustee of
a trust OR TO THE DONEES OF A POWER IN  TRUST  OVER  PROPERTY  having  a
value  of  $400,000  or  more, of a trust OR TO THE DONEES OF A POWER IN
TRUST OVER PROPERTY 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 OR CALENDAR year to the date of the distribution and shall,  on  a
proportionate  basis,  be those allowed to trustees of a trust OR TO THE
DONEES OF A POWER IN TRUST  OVER  PROPERTY  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 OR  CALENDAR  year  and  the
part  of  such  commissions payable from principal and computed from the
beginning of the trust OR CALENDAR 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 OR A CALENDAR YEAR IN  THE  CASE
OF  POWER  IN  TRUST  additional property shall be received into a trust
which had a value of less than $100,000 OR BY A  DONEE  OF  A  POWER  IN
TRUST  THE  PROPERTY SUBJECT TO 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 OR BY A DONEE OF A POWER IN TRUST THE PROPERTY SUBJECT TO 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 OR CALENDAR year so  that  because  of
the  additional  property the trust OR THE PROPERTY SUBJECT TO THE POWER
IN TRUST shall have a value of $100,000 or more or of $400,000 or  more,
as  the  case may be, at the end of the trust OR CALENDAR year, then the
annual commission allowed herein TO THE TRUSTEE OR TO THE DONEE  OF  THE
POWER  IN  TRUST  shall,  on  a proportionate basis, be those allowed to
trustees of a trust OR TO DONEES OF  A  POWER  IN  TRUST  OVER  PROPERTY
having  a  value  of less than $100,000, or to trustees of a trust OR TO
THE DONEES OF THE POWER IN TRUST having a value of $100,000 or more  but
less  than  $400,000, as the case may be, for the period from the begin-
ning of the trust OR CALENDAR 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 OR TO DONEES OF A  POWER  IN  TRUST  OVER
PROPERTY  having  a value of $100,000 or more but less than $400,000, or
TO TRUSTEES of a trust OR TO DONEES OF A POWER IN  TRUST  OVER  PROPERTY
having  $400,000  or  more, as the case may be, for the remainder of the
trust OR CALENDAR year.
  (c) Notwithstanding any provisions of paragraphs (a) and (b)  of  this
subdivision  to  the  contrary,  if  during  the  continuance of a trust
created solely for public, religious, charitable, scientific,  literary,
educational  or fraternal uses or during the continuance of such a trust
after the termination of a life use or uses, 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 commission 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

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among  the  trustees  according to the services rendered by them respec-
tively, 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; provided however, if during the
continuance of a trust created solely for public, religious, charitable,
scientific, literary, educational or fraternal  uses  created  prior  to
April  1, 1948, 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
commission  allowed  under  subdivision 5 to a sole trustee unless there
are more than 3, in which case the commission to which 3 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  apportion-
ment.
  7.  Where  a  trustee  OR  DONEE OF A POWER IN TRUST 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 hereof and
in  addition  to  the  commissions  herein  provided  he OR SHE shall be
allowed and may retain for such services 6 per cent of the  gross  rents
collected,  but there shall be only 1 such additional commission regard-
less of the number of trustees OR DONEES OF THE POWER IN TRUST. If there
are 2 or more trustees OR DONEES OF THE POWER IN  TRUST  the  additional
commission  herein  provided 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. A trustee who prior to September 1, 1966 shall  have  received  the
maximum amount of commissions on principal permitted by subdivision 8 of
section  285-a  of the surrogate's court act as that subdivision existed
prior to that date, shall not be entitled to  annual  principal  commis-
sions  for  the  period  from the date when he OR SHE shall receive such
maximum and September 1, 1966, but shall be entitled to receive  commis-
sions  from  and  after September 1, 1966 at the rates and in the manner
provided in this section. A trustee who has become  entitled  to  annual
principal commissions pursuant to section 285-a of the surrogate's court
act as it existed prior to September 1, 1966, but has not received them,
may  receive  an amount of commissions not in excess of the amount he OR
SHE would have been entitled to if he OR SHE had taken such commissions,
and be entitled to  receive  in  addition  commissions  from  and  after
September  1,  1966  at  the  rates  and  in the manner provided in that
section.
  9. A trustee who has been acting prior to July 1, 1956 shall be  enti-
tled to have commissions on principal and income theretofore received by
him OR HER computed, allowed and paid under the methods and at the rates
set forth herein, except as follows:
  (a)  If  prior  to  July  1,  1956  a  trustee has been allowed or has
retained commissions for receiving and paying out  or  for  distributing
any  item of principal he OR SHE shall be entitled to no further commis-
sions on the item.

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  (b) If prior to July 1, 1956 a trustee has been  allowed  or  retained
commissions  on  any  item  of  principal  received  but not paid out or
distributed by him OR HER he OR SHE shall  be  entitled  to  no  further
commissions for receiving the item.
  (c)  Any trustee who became entitled to an annual principal commission
under subdivision 1 (b) of section 285-a of the surrogate's court act as
it existed prior to April 1, 1948 and who has not retained such  commis-
sion  may  retain  an  amount equal to one-half of such annual principal
commission. A trustee who because of the provisions of subdivision 2  of
section  285-a of the surrogate's court act as it existed prior to April
1, 1948 either was not entitled to retain an annual principal commission
under subdivision 1 (b) thereof or was required to  credit  such  annual
principal commission against his OR HER commission for receiving princi-
pal,  may retain an amount equal to 1/2 of such annual principal commis-
sion. If a trustee has been allowed by decree or has retained  any  such
annual  principal  commission  one-half  the  amount  thereof  shall  be
deducted from the amount of  commissions  to  which  the  trustee  would
otherwise be entitled under the provisions of subdivision 1.
  (d)  The annual principal commissions allowed by subdivision 3 of this
section as it existed on September 1,  1967  shall  not  be  allowed  or
retained in respect of any trust year ending prior to April 1, 1948, but
for any trust year ending on or after April 1, 1948 and prior to July 1,
1956,  the  annual principal commission which may be allowed or retained
shall be computed at the rates in effect on the  date  such  trust  year
ended.
  (e)  If  prior  to  July  1,  1956  a  trustee has been allowed or has
retained commissions on any item of income received and paid out by  him
OR  HER prior to September 1, 1943 or on any item of income collected by
him OR HER subsequent to September 1, 1943 he OR SHE shall  be  entitled
to no further commission on the item.
  10.  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  commis-
sions. Whenever any portion of the dividends, interests or rents payable
to  a trustee OR DONEE OF A POWER IN TRUST 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.
  11. Where the will provides a specific compensation to  a  trustee  OR
DONEE  OF A POWER IN TRUST he OR SHE is not entitled to any other allow-
ances for his OR HER services.
  12. If a trustee of a trust OR DONEE OF A POWER IN TRUST is authorized
or required by the terms of  the  will  to  accumulate  income  for  any
purpose  permitted  by law, any income so accumulated which is not added
to principal of the trust OR TO THE PRINCIPAL OF THE PROPERTY SUBJECT TO
THE POWER IN TRUST shall be deemed a separate  trust  OR  SEPARATE  FUND
SUBJECT  TO  THE POWER IN TRUST for purposes of this subdivision and the
trustee OR DONEE OF THE POWER IN TRUST shall be entitled to  commissions
in  respect  thereof  at  the  rates  and  according  to  the  terms and
provisions of subdivisions 1 and  2  of  this  section  as  though,  for
purposes  of computing commissions of the trustee, income so accumulated
was principal.
  13. For the purposes of this section, the term  "trustee"  shall  mean
any  trustee  who  is  not  a corporate trustee AND THE TERM "DONEE OF A
POWER IN TRUST" SHALL MEAN ANY SUCH DONEE INCLUDING A DONEE OF  A  POWER
DURING MINORITY WHO IS NOT A CORPORATE FIDUCIARY provided, however, that

A. 9879                             9

as used in subdivision 6 of this section, the term trustee shall include
a  corporate  trustee,  AND  FURTHER  PROVIDED  THAT  THE TERM "PROPERTY
SUBJECT TO THE POWER IN TRUST" SHALL INCLUDE PROPERTY SUBJECT TO A POWER
DURING MINORITY.
  S  4. Section 2309 of the surrogate's court procedure act, the section
heading and subdivision 1 as amended by chapter 503 of the laws of 1980,
subdivision 2 as amended by chapter 654 of the laws of 1993, subdivision
3 as amended by chapter 243 of the laws of 2001, paragraph (a) of subdi-
vision 5 as amended and subdivision 11 as added by chapter  936  of  the
laws  of 1984, subdivisions 6 and 7 as amended by chapter 303 of the law
of 1976, paragraphs (a) and (b) of subdivision 6  as amended by  chapter
245  of  the  laws of 1991, and the opening paragraphs of paragraphs (a)
and (b) of subdivision 6 as amended by chapter 514 of the laws of  1993,
is amended to read as follows:
S 2309. Commissions of trustees, OF DONEES OF POWERS DURING MINORITY AND
          OF  DONEES OF POWERS IN TRUST under wills of persons dying, or
          lifetime trusts established, after August 31, 1956
  1. On the settlement of the account of any trustee OR DONEE OF A POWER
IN TRUST 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 OR HER  his  OR  HER  reasonable  and  necessary
expenses  actually paid by him OR HER and if he OR SHE be an attorney of
this state and shall have rendered legal services in connection with his
OR HER official duties, such compensation for his OR HER legal  services
as  shall  appear to the court to be just and reasonable and in addition
thereto it must allow to the trustee OR DONEE OF A POWER  IN  TRUST  for
his OR HER services as trustee OR DONEE OF A POWER IN TRUST a commission
from  principal  OR FROM THE PROPERTY SUBJECT TO THE POWER IN TRUST, for
paying out all sums of money constituting principal OR PROPERTY  SUBJECT
TO THE POWER IN TRUST at the rate of 1 per cent.
  2.  In  addition  to  the commission allowed by subdivision 1 hereof a
trustee OR DONEE OF A POWER IN TRUST shall be entitled to annual commis-
sions at the following rates:
  (a) $10.50 per $1,000 or major fraction thereof on the first  $400,000
of principal OR PROPERTY SUBJECT TO THE POWER IN TRUST.
  (b) $4.50 per $1,000 or major fraction thereof on the next $600,000 of
principal OR PROPERTY SUBJECT TO THE POWER IN TRUST.
  (c) $3.00 per $1,000 or major fraction thereof on all additional prin-
cipal OR PROPERTY SUBJECT TO THE POWER IN TRUST.
  Such  annual  commissions shall be computed either on the value of the
principal of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN  TRUST
at  the  end  of the period for which the commissions are payable or, at
the option of the trustee OR DONEE OF THE POWER IN TRUST, on  the  value
of the principal of the trust OR OF THE PROPERTY SUBJECT TO THE POWER IN
TRUST  at the beginning of such period, provided that the option elected
by the trustee OR DONEE OF THE POWER IN TRUST for the first  period  for
which  such commissions are payable shall be used during the continuance
of the trust OR OF THE POWER IN  TRUST  and  shall  be  binding  on  any
successor  or  substitute  trustee or trustees, DONEE OR DONEES.  In the
case of a trust which prior to January 1, 1994 computed  annual  commis-
sions  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 commis-

A. 9879                            10

sions  were payable, which new election shall be used during the remain-
ing 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 trus-
tee  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 comput-
ing  the  annual  commissions  the  value  of  any  principal asset when
received by the trust OR DONEE OF A POWER IN TRUST shall be the presump-
tive 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 OR OF THE PROPERTY SUBJECT TO THE POWER IN TRUST  the  trustee
OR  DONEE OF THE POWER IN TRUST 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 OR DONEE OF A POWER IN TRUST
any person interested may dispute the amount of any  commission  claimed
or  retained. The burden of proving that the actual value of any princi-
pal asset OR ASSET SUBJECT TO  THE  POWER  IN  TRUST  differs  from  its
presumptive  value  is  upon the trustee OR DONEE OF A POWER IN TRUST 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 paya-
ble one-third from the income of the trust OR PROPERTY  SUBJECT  TO  THE
POWER IN TRUST and two-thirds from the principal of the trust OR PROPER-
TY  SUBJECT TO THE POWER IN TRUST. However, in the case of a trust whose
definition of income is governed  by  SECTION  11-2.4  of  the  estates,
powers and trusts law or a charitable remainder annuity trust or a char-
itable  remainder unitrust, as defined in section six hundred sixty-four
of the Internal Revenue Code of nineteen hundred eighty-six, 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 trus-
tee provided he OR SHE 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 AND BY A DONEE OF A POWER
IN TRUST IF HE OR SHE FURNISHES ANNUALLY AS OF A DATE NO  MORE  THAN  30
DAYS  PRIOR  TO  THE  END OF THE CALENDAR YEAR TO THE BENEFICIARY OF THE
POWER IN TRUST, a statement showing the principal assets on hand on that
date, and at least annually or more frequently if the trustee  OR  DONEE
OF  THE  POWER  IN  TRUST  so elects, a statement showing all his OR HER
receipts of income and principal OR PROPERTY SUBJECT  TO  THE  POWER  IN
TRUST  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 OR DONEE OF A POWER IN
TRUST shall not be deemed to have waived any commissions  by  reason  of
his  OR  HER  failure  to retain them at the time when he OR SHE becomes
entitled thereto; provided however that IN THE CASE OF A  TRUST  commis-
sions  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 AND IN THE CASE OF PROPERTY SUBJECT TO A POWER IN TRUST COMMISSIONS

A. 9879                            11

PAYABLE FROM INCOME FOR ANY GIVEN CALENDAR YEAR  SHALL  BE  ALLOWED  AND
RETAINED ONLY FROM INCOME DERIVED FROM THE PROPERTY DURING THAT YEAR AND
SHALL NOT BE SUPPLIED FROM INCOME ON HAND IN RESPECT OF ANY OTHER CALEN-
DAR  YEAR.  If  a  beneficiary  receiving  income  does not desire to be
furnished with any such statements his OR HER advice to the  trustee  OR
TO THE DONEE OF THE POWER IN TRUST to that effect in writing shall ther-
eafter excuse the trustee OR DONEE OF THE POWER IN TRUST from furnishing
such  statement  to  the  beneficiary  unless  and until the beneficiary
requests such annual statements from the trustee OR DONEE OF  THE  POWER
IN TRUST.
  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, char-
itable, 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  distribut-
ing all sums of principal at the rate specified in subdivision 1.
  6. (a) Subject to SECTION 2313 regarding multiple commissions of exec-
utors  [or], trustees, OR DONEES OF A POWER IN TRUST CREATED under wills
of persons dying, or lifetime trusts established, after August 31, 1993,
if the gross value of the principal of the  trust  OR  OF  THE  PROPERTY
SUBJECT  TO THE POWER IN TRUST accounted for amounts to $400,000 or more
and there is more than 1 trustee OR DONEE each trustee OR DONEE is enti-
tled to the full compensation for paying out principal allowed herein to
a sole trustee OR DONEE unless there are more than 3, in which case  the
compensation  to which 3 would be entitled must be apportioned among the
trustees OR DONEES OF THE POWER  IN  TRUST  according  to  the  services
rendered  by  them  respectively  unless  [the trustees] THEY 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 OR OF THE
PROPERTY SUBJECT TO THE POWER IN TRUST accounted for is:
  (i) less than $100,000 and there is more than 1 trustee  OR  DONEE  OF
THE  POWER  IN  TRUST,  the  full  compensation for paying out principal
allowed herein to a sole trustee OR DONEE OF THE POWER IN TRUST 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 OR DONEE OF
THE POWER IN TRUST is entitled to the full compensation for  paying  out
principal  allowed  herein  to  a  sole trustee OR DONEE OF THE POWER IN
TRUST unless there are more than 2 trustees OR DONEES OF  THE  POWER  IN
TRUST  in  which  case  the  full  compensation for paying out principal
allowed herein to 2 trustees OR DONEES OF  A  POWER  OF  TRUST  must  be
apportioned  among  them  according  to  the  services  rendered by them
respectively, unless the trustees OR DONEES OF THE POWER IN TRUST  shall
have agreed in writing between or among themselves to a different appor-

A. 9879                            12

tionment  which,  however,  shall  not  provide  for  more than one full
commission for any one of them.
  (b) Subject  to  SECTION 2313 regarding multiple commissions of execu-
tors [or], trustees, OR DONEES OF A POWER IN TRUST CREATED  under  wills
of persons dying, or lifetime trusts established, after August 31, 1993,
if the value of the principal of the trust OR OF THE PROPERTY SUBJECT TO
THE  POWER  IN 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 OR DONEE OF A POWER IN TRUST each trustee OR DONEE OF A
POWER  IN TRUST is entitled to the full annual commission allowed herein
to a sole trustee OR DONEE OF A POWER IN TRUST  unless  there  are  more
than  3,  in which case the annual commissions to which 3 would be enti-
tled must be apportioned among the trustees OR DONEES OF  THE  POWER  IN
TRUST according to the services rendered by them respectively unless the
trustees  OR  DONEES  OF THE POWER IN TRUST 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 OF THE TRUST OR OF THE PROPERTY SUBJECT TO
THE POWER IN TRUST 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 OR DONEE OF
THE POWER IN TRUST, the annual commission allowed herein to a sole trus-
tee OR DONEE OF A POWER IN TRUST must be apportioned among the  trustees
OR  DONEES  OF  THE POWER IN TRUST according to the services rendered by
them respectively, or
  (ii) $100,000 or more but less than $400,000, each trustee OR DONEE OF
THE POWER IN TRUST is entitled to the  full  annual  commission  allowed
herein  to  a sole trustee OR DONEE OF A POWER IN TRUST unless there are
more than 2 trustees OR DONEES OF THE POWER IN TRUST in which  case  the
full  annual  commissions  allowed  herein  to 2 trustees OR DONEES OF A
POWER IN TRUST must be apportioned among them according to the  services
rendered  by  them  respectively,  unless  the trustees OR DONEES OF THE
POWER IN TRUST 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  OR  FROM  PROPERTY  SUBJECT TO A POWER IN TRUST having a value of
$400,000 or more, or if from a trust OR FROM PROPERTY SUBJECT TO A POWER
IN 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 OR OF THE CALENDAR
YEAR any payments in partial distribution of the trust OR OF THE PROPER-
TY SUBJECT TO THE POWER IN TRUST shall  be  made  during  the  trust  OR
CALENDAR  year  so as to reduce the trust OR THE PROPERTY SUBJECT TO THE
POWER IN TRUST to a value of less than $400,000 or $100,000, as the case
may be, at the end of the  trust  OR  CALENDAR  year,  then  the  annual
commissions  allowed  herein  shall,  on a proportionate basis, be those
allowed to trustees of a trust OR TO THE DONEES OF A POWER IN TRUST OVER
PROPERTY having a value of $400,000 or more, or of a  trust  OR  TO  THE
DONEES  OF  A POWER IN TRUST OVER PROPERTY 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 OR CALENDAR year to the date of the  distribution
and  shall,  on a proportionate basis, be those allowed to trustees of a
trust OR TO THE DONEES OF A POWER IN TRUST OVER PROPERTY 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 OR CALENDAR year and
the part of such commissions payable from principal  and  computed  from
the  beginning of the trust OR CALENDAR year to the date of distribution

A. 9879                            13

shall be charged ratably to the property remaining in the trust OR STILL
SUBJECT TO THE POWER IN TRUST AFTER SUCH DISTRIBUTION and to the proper-
ty distributed from the trust OR TO THE  BENEFICIARY  OF  THE  POWER  IN
TRUST  on  the  basis  of  their respective values. Further, if during a
trust OR CALENDAR year additional property  shall  be  received  into  a
trust  which  had a value of less than $100,000 OR BY A DONEE OF A POWER
IN TRUST THE PROPERTY  SUBJECT  TO  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 OR BY A DONEE OF A POWER IN TRUST THE PROPERTY SUBJECT TO
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 OR CALENDAR YEAR, so
that because of the  additional  property  the  trust  OR  THE  PROPERTY
SUBJECT  TO  THE POWER IN 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 OR CALENDAR year, then the annual commissions  allowed  herein
TO THE TRUSTEE OR TO THE DONEE OF THE POWER IN TRUST shall, on a propor-
tionate basis, be those allowed to trustees of a trust OR TO DONEES OF A
POWER IN TRUST OVER PROPERTY having a value of less than $100,000, or to
trustees  of  a  trust  OR  TO  DONEES OF A POWER IN TRUST OVER PROPERTY
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 OR CALENDAR 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 OR TO
DONEES OF A POWER IN TRUST OVER PROPERTY having a value of  $100,000  or
more but less than $400,000, or TO TRUSTEES of a trust OR TO DONEES OF A
POWER  IN  TRUST  OVER PROPERTY having $400,000 or more, as the case may
be, for the remainder of the trust OR CALENDAR 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  apportion-
ment.
  7.  Where  a  trustee  OR  DONEE OF A POWER IN TRUST 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 OR SHE 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 OR DONEES OF THE POWER IN TRUST. If
there  are  2 or more trustees OR DONEES OF THE POWER IN TRUST the addi-
tional commission herein provided for must  be  apportioned  among  them
according  to  the  services  rendered  by them respectively unless they

A. 9879                            14

shall have agreed in writing among themselves to a different  apportion-
ment.
  8.  If  a trustee OR DONEE OF A POWER IN TRUST is either authorized or
required by the terms of the will to accumulate income for  any  purpose
permitted  by  law  he  OR SHE 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] PERCENT of the
first $2,500 of such income distributed during the administration of the
trust and 1 [per cent] PERCENT of all such income distributed in  excess
of $2,500 and he OR SHE 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 commis-
sions. Whenever any portion of the dividends, interests or rents payable
to a trustee OR TO A DONEE OF A POWER IN TRUST 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 OR A
DONEE OF A POWER IN TRUST he OR SHE is not entitled to any other  allow-
ances for his OR HER services.
  11.  For  the  purposes of this section, the term "trustee" shall mean
any trustee who is not a corporate trustee AND  THE  TERM  "DONEE  OF  A
POWER  IN  TRUST" SHALL MEAN ANY SUCH DONEE INCLUDING A DONEE OF A POWER
DURING MINORITY WHO IS NOT A CORPORATE FIDUCIARY provided, however, that
as used in subdivision 6 of this section, the term trustee shall include
a corporate trustee AND FURTHER PROVIDED THAT THE TERM "PROPERTY SUBJECT
TO THE POWER IN TRUST" SHALL INCLUDE PROPERTY SUBJECT TO A POWER  DURING
MINORITY.
  S  5.  Section 2312 of the surrogate's court procedure act as added by
chapter 936 of the laws of 1984, subdivision 2, 3, 7, 9  and  paragraphs
(d)  and  (e) of subdivision 10 as amended by chapter 511 of the laws of
1987, paragraph (b) of subdivision 4 as amended by chapter  245  of  the
laws of 1991, and subdivision 5 as amended by chapter 243 of the laws of
2001, is amended to read as follows:
S 2312. Commissions  of  corporate  trustees,  INCLUDING  WHEN ACTING AS
          DONEES OF POWERS DURING MINORITY OR DONEES OF POWER IN TRUST
  1. If the will or  lifetime  trust  instrument  makes  provisions  for
specific rates or amounts of commissions (other than a general reference
to  commissions  allowed by law or words of like import) for a corporate
trustee, or, if a corporate trustee has agreed to accept specific  rates
or amounts of commissions, a corporate trustee, WHETHER AS TRUSTEE OR AS
DONEE  OF  A  POWER  IN TRUST, INCLUDING FOR PURPOSES OF THIS SECTION AS
DONEE OF A POWER DURING MINORITY, CREATED UNDER THE  PROVISIONS  OF  THE
WILL  OR  LIFETIME TRUST INSTRUMENT, shall be entitled to be compensated
in accordance with such provisions or agreement, as the case may be.
  2. For trusts having a principal value of more than four hundred thou-
sand dollars AND AS DONEE OF A POWER IN TRUST WHERE THE PROPERTY SUBJECT
TO THE POWER, INCLUDING  FOR  PURPOSES  OF  THIS  SECTION  THE  PROPERTY
SUBJECT  TO  A POWER DURING MINORITY, HAS A PRINCIPAL VALUE OF MORE THAN
FOUR HUNDRED THOUSAND DOLLARS and subject to the provisions of  subdivi-
sion  4  of  this section, if the will or lifetime trust instrument does
not make provisions for specific rates or amounts  of  commissions,  or,
contains only a general reference to commissions allowed by law or words
of  like  import,  a corporate trustee shall be entitled to such commis-

A. 9879                            15

sions as may be reasonable, and the court, upon application of a  person
interested  in the trust OR IN THE FUND HELD BY THE CORPORATE TRUSTEE AS
DONEE OF A POWER IN TRUST, may review the reasonableness of the  commis-
sion of such corporate trustee.
  3. Subject to the provisions of paragraph (a) of subdivision 4 of this
section  and  regardless of the principal value of the trust: (a) during
the continuance of a trust created solely for public, religious,  chari-
table,  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 a corporate trustee shall be entitled to and may retain
commissions from income in accordance with the provisions of subdivision
1 or 2 hereof, as the case may be.
  (b) In the case of a trust created solely for public, religious, char-
itable,  scientific, literary, educational or fraternal uses a corporate
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 a corporate trustee for the period of
the measuring life use or uses shall be  entitled  to  commissions  from
income  and  principal according to the provisions of subdivision 1 or 2
hereof, as the case may be, 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 in accordance with the provisions
of subdivision 1 or 2 hereof, as the case may be.
  4. Notwithstanding anything contained in this  chapter,  the  estates,
powers and trusts law or any other provision of law to the contrary,
  (a)  Except as otherwise provided by paragraph (b) of this subdivision
and subdivision three of this section, a corporate trustee of any  trust
created  under will or lifetime trust instrument, OR AS DONEE OF A POWER
IN TRUST CREATED UNDER WILL OR LIFETIME INSTRUMENT, whether in existence
on or after the effective date of this section,  shall  be  entitled  to
receive  at  least  the  compensation provided for an individual trustee
under subdivisions 1, 2, 5 (BUT ONLY AS TRUSTEE), 6, 7 and 12 of section
2308 and subdivisions 1, 2, 5 (BUT ONLY AS  TRUSTEE),  6,  7  and  8  of
section  2309, as the case may be, in effect after the effective date of
this section, at the time and in the manner provided by  such  sections,
unless the will or lifetime trust instrument or an agreement between the
trustee  and  the  testator  or  grantor or by the trustee shall provide
otherwise.
  (b) A corporate trustee shall, in addition to the compensation permit-
ted by the provisions of paragraph (a) of this subdivision, be  entitled
to  annual  commissions at the rate of not more than $12.35 per thousand
or major fraction thereof, in lieu of the  annual  commissions  provided
under  paragraph  (a)  of this subdivision, on trusts having a principal
value of not more than four hundred thousand dollars AND SHALL BE  ENTI-
TLED TO ANNUAL COMMISSIONS AT THE SAME RATE AS DONEE OF A POWER IN TRUST
WHERE  THE  PROPERTY  SUBJECT  TO THE POWER HAS A PRINCIPAL VALUE OF NOT
MORE THAN FOUR HUNDRED THOUSAND DOLLARS,  and  such  annual  commissions
shall  be  deemed  reasonable  compensation, unless the will or lifetime
trust instrument or an agreement between the corporate trustee  and  the
testator or grantor or by the corporate trustee shall provide otherwise.
A  corporate  trustee shall be entitled to receive such commissions from
time to time during the trust OR CALENDAR year and  shall  otherwise  be
governed  by  the  provisions of sections 2308 and 2309, as the case may
be, in effect from time to time.
  5. Unless the will or lifetime  trust  instrument  expressly  provides
otherwise, the commissions allowable by subdivision 1, 2 or 4 hereof, as

A. 9879                            16

the case may be, shall be payable one-third from the income of the trust
OR  FROM  THE  INCOME  OF THE PROPERTY SUBJECT TO THE POWER IN TRUST and
two-thirds from the principal of the trust OR FROM THE PROPERTY  SUBJECT
TO THE POWER IN TRUST.  However, in the case of a trust whose definition
of  income  is  governed  by  SECTION  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, as  amended,  such
commissions  shall be payable from the principal of any such trust after
allowance for the annuity or unitrust amounts and shall not  be  payable
out of such annuity or unitrust amounts.
  6.  The  commissions  allowed by subdivision 1, 2 or 4 thereof, as the
case may be, may be retained, at any time or from time  to  time  during
the  year  in which such commissions are earned, by a corporate trustee,
provided it furnishes annually as of a date no more than 30  days  prior
to  the end of the year selected by the corporate trustee, to each bene-
ficiary currently receiving income, and to any other beneficiary  inter-
ested in the income and to any person interested in the principal of the
trust  who  shall make a demand therefor, AND, WHEN ACTING AS DONEE OF A
POWER IN TRUST, TO THE BENEFICIARY OF THE POWER IN  TRUST,  a  statement
showing  the principal assets OR ASSETS SUBJECT TO THE POWER IN TRUST on
hand on that date, and at least annually or more frequently if the trus-
tee so elects, a statement showing all his OR HER receipts of income and
principal OR OF PROPERTY SUBJECT TO THE POWER IN TRUST 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 corporate trustee shall not be deemed  to  have  waived  any
commissions  by reason of its failure to retain them at the time when it
becomes entitled thereto; provided however that commissions payable from
income for any such year shall be allowed and retained only from  income
derived  from  the trust during such year and shall not be supplied from
income on hand in respect of any other year. If a beneficiary  receiving
income OR A BENEFICIARY OF A POWER IN TRUST OF WHICH THE CORPORATE TRUS-
TEE  IS  DONEE  does not desire to be furnished with any such statements
his OR HER advice to the trustee to that effect in writing shall  there-
after  excuse  the  corporate trustee from furnishing such statements to
the beneficiary unless and until the beneficiary  requests  such  annual
statements  from the trustee. Upon enactment of, and subject to subdivi-
sion 1 of this section, a corporate trustee shall  continue  to  receive
commissions in the manner provided for a trustee OR WHEN ACTING AS DONEE
OF  A  POWER  IN  TRUST IN THE MANNER PROVIDED FOR A DONEE OF A POWER IN
TRUST under sections 2308 and 2309, as the case may be, in effect  imme-
diately  before  the effective date of this section until the end of the
then current trust OR CALENDAR year, and thereafter, a corporate trustee
may receive commissions in accordance with the provisions of subdivision
2 or 4 of this section. A corporate trustee shall not  change  from  the
commissions  provided  for by subdivision 2 or 4 of this section, as the
case may be, during a trust's calendar or fiscal year  OR  THE  CALENDAR
YEAR  IN THE CASE OF A POWER IN TRUST but a corporate trustee may change
from the commissions provided for by subdivision 2  to  the  commissions
provided  for  by  subdivision 4 of this section, or vice versa, only at
the beginning of a calendar or fiscal year of a trust OR A CALENDAR YEAR
IN THE CASE OF A POWER IN TRUST, as the case may be.
  7. On the settlement of the account of any trustee OR DONEE OF A POWER
IN TRUST under a will or lifetime trust instrument, in addition  to  the
commissions  provided  for  by this section, the court must allow to the

A. 9879                            17

corporate trustee INCLUDING A CORPORATE TRUSTEE ACTING  AS  DONEE  OF  A
POWER  IN  TRUST  corporate  trustee's reasonable and necessary expenses
actually paid by the trustee.
  8.  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 commis-
sions. Whenever any portion of the dividends, interests, rents or  other
income  payable to a trustee OR DONEE OF A POWER IN TRUST 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.
  9. A trustee who prior to September 1, 1966 shall  have  received  the
maximum amount of commissions on principal permitted by subdivision 8 of
section  285-a  of the surrogate's court act as that subdivision existed
prior to that date, shall not be entitled to  annual  principal  commis-
sions  for  the  period from the date when he OR SHE shall have received
such maximum to September 1, 1966, but  shall  be  entitled  to  receive
commissions  from  and  after  September 1, 1966 at the rates and in the
manner provided in section 2308 as in effect immediately  before  enact-
ment  of  this  section.  A  trustee who is entitled to annual principal
commissions pursuant to section 285-a of the surrogate's court act as it
existed prior to September 1, 1966,  but  has  not  received  them,  may
receive  an  amount of commissions not in excess of the amount he OR SHE
would have been entitled to if he OR SHE had taken such commissions, and
be entitled to receive in addition commissions from and after  September
1, 1966 at the rates and in the manner provided in section 285-a of this
act.
  10. A trustee who has been acting prior to July 1, 1956 shall be enti-
tled to have commissions on principal and income theretofore received by
him OR HER computed, allowed and paid under the methods and at the rates
set forth herein, except as follows:
  (a)  If  prior  to  July  1,  1956  a  trustee has been allowed or has
retained commissions for receiving and paying out  or  for  distributing
any  item of principal he OR SHE shall be entitled to no further commis-
sions on the item.
  (b) If prior to July 1, 1956 a trustee has been  allowed  or  retained
commissions  on  any  item  of  principal  received  but not paid out or
distributed by him OR HER he OR SHE shall  be  entitled  to  no  further
commissions for receiving the item.
  (c)  Any trustee who became entitled to an annual principal commission
under subdivision 1 (b) of section 285-a of the surrogate's court act as
it existed prior to April 1, 1948 and who has not retained such  commis-
sion  may  retain  an  amount equal to one-half of such annual principal
commission. A trustee who because of the provisions of subdivision 2  of
section  285-a of the surrogate's court act as it existed prior to April
1, 1948 either was not entitled to retain an annual principal commission
under subdivision 1 (b) thereof or was required to  credit  such  annual
principal commission against his OR HER commission for receiving princi-
pal,  may  retain  an  amount equal to one-half of such annual principal
commission. If a trustee has been allowed by decree or has retained  any
such  annual  principal  commission one-half the amount thereof shall be
deducted from the amount of  commissions  to  which  the  trustee  would
otherwise  be  entitled  under the provisions of subdivision 1 of surro-
gate's court procedure act section 2308.
  (d) The annual principal  commissions  allowed  by  subdivision  3  of
surrogate's  court procedure act section 2308 as it existed on September

A. 9879                            18

1, 1967 shall not be allowed by decree or retained  in  respect  of  any
trust  year ending prior to April 1, 1948, but for any trust year ending
on or after April 1, 1948 and prior to July 1, 1956, the annual  princi-
pal  commission  which  may  be  allowed  by decree or retained shall be
computed at the rates in effect on the date such trust year ended.
  (e) If prior to July 1, 1956 a trustee has been allowed by  decree  or
has  retained commissions on any item of income received and paid out by
him OR HER prior to September 1, 1943 or on any item of income  received
by  him  OR HER subsequent to September 1, 1943 he OR SHE shall be enti-
tled to no further commission on the item.
  (F) FOR PURPOSES OF THIS SECTION, THE TERM "DONEE OF A POWER IN TRUST"
SHALL MEAN ANY SUCH DONEE INCLUDING A DONEE OF A POWER  DURING  MINORITY
WHO IS A CORPORATE FIDUCIARY AND THE TERM "PROPERTY SUBJECT TO THE POWER
IN TRUST" SHALL INCLUDE PROPERTY SUBJECT TO A POWER DURING MINORITY.
  S  6.  Section 2313 of the surrogate's court procedure act, as amended
by chapter 471 of the laws of 1995, is amended to read as follows:
S 2313. Multiple commissions of executors or trustees, DONEES OF  POWERS
          DURING  MINORITY,  OR  DONEES OF POWER IN TRUST under wills of
          persons dying, or lifetime trusts  established,  after  August
          31, 1993
  With  respect  to  wills  of  persons dying, or lifetime trusts estab-
lished, after August 31, 1993, if there are more than two  executors  or
trustees,  DONEES  OF  A  POWER DURING MINORITY, OR DONEES OF A POWER IN
TRUST, no more than two commissions shall be allowed unless the decedent
OR CREATOR has specifically provided otherwise in a signed writing,  and
the  compensation thus allowable must be apportioned among the fiduciar-
ies OR DONEES OF THE POWER IN TRUST 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 for any one of them.
  S  7. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.