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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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|---|---|
| Dec 06, 2019 |
signed chap.601 |
| Nov 26, 2019 |
delivered to governor |
| Jun 03, 2019 |
returned to senate passed assembly ordered to third reading cal.448 substituted for a7522 |
| May 30, 2019 |
referred to judiciary delivered to assembly passed senate |
| May 20, 2019 |
advanced to third reading |
| May 15, 2019 |
2nd report cal. |
| May 14, 2019 |
1st report cal.704 |
| May 03, 2019 |
referred to judiciary |
Senate Bill S5512
Signed By Governor2019-2020 Legislative Session
Relates to the commissions of donees of a power in trust, including donees of a power during minority
download bill text pdfSponsored By
(D, WF) 47th Senate District
Archive: Last Bill Status - Signed by Governor
- Introduced
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- In Committee Assembly
- In Committee Senate
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- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Votes
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Floor Vote: May 30, 2019
aye (58)- Addabbo Jr.
- Akshar
- Amedore
- Antonacci
- Bailey
- Benjamin
- Biaggi
- Boyle
- Breslin
- Brooks
- Carlucci
- Comrie
- Felder
- Flanagan
- Gallivan
- Gaughran
- Gianaris
- Gounardes
- Griffo
- Harckham
- Helming
- Hoylman-Sigal
- Jackson
- Jacobs
- Jordan
- Kaminsky
- Kaplan
- Kennedy
- Krueger
- Lanza
- Little
- Liu
- Martinez
- May
- Mayer
- Metzger
- Montgomery
- Myrie
- O'Mara
- Ortt
- Parker
- Persaud
- Ramos
- Ranzenhofer
- Ritchie
- Rivera
- Robach
- Salazar
- Sanders Jr.
- Savino
- Serino
- Serrano
- Seward
- Skoufis
- Stavisky
- Stewart-Cousins
- Tedisco
- Thomas
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2019-S5512 (ACTIVE) - Details
- See Assembly Version of this Bill:
- A7522
- Law Section:
- Surrogate's Court Procedure Act
- Laws Affected:
- Amd §§2306, 2307, 2308, 2309, 2312 & 2313, SCPA
2019-S5512 (ACTIVE) - Sponsor Memo
BILL NUMBER: S5512
SPONSOR: HOYLMAN
TITLE OF BILL: 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
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Surro-
gate's Court Advisory Committee.
This measure would amend the Surrogate's Court Procedure Act to create
rules governing the commissions of donees of powers in trust, including
donees of powers during minority, identical to the existing rules
governing commissions of trustees.
The concept of a "power in trust" is long established in New York law.
Current law in section 10-3.1(b) of the EPTL refers to "a power during
minority to manage property vested in an infant" as one of the powers
which is not a power of appointment but to which the provisions of arti-
cle 10 generally apply. Such a donee is included in the definition of
"fiduciary" in the EPTL (section 2-1.7) and in the SCPA (section
103(21)) (both referring to "donee of a power during minority").
It is clear, however, that donees of a power in trust are not limited to donees holding the power during the minority of the beneficiary. Although the express statutory references to powers in trust refer only to powers to manage property vested in an infant, EPTL 10-10.1, which expressly retain as the law of New York the common law of powers except as modified by article 10, the statement by the Bennett Commission that this provision does not invalidate other powers not specifically mentioned,* and case law**, clearly indicate that a power in trust to manage property vested in an incapacitated person does exist under New York law. The question of compensation of such donees of powers during minority and powers in trust to manage property vested in an incapacitated person and presumably of any other donees of powers in trust that may exist under New York common law is not clearly answered by our statutes. Matter of Chase Manhattan Bank (Golding)*** authorized advance payment of commissions under SCPA 2311 to a corporate trustee acting as donee of a power to manage property during minority under a lifetime trust. The court also ordered that the calculation of commissions was to be made under section 2307 of the SCPA, which governs payments to fiduciaries other than trustees because the donee was not a trustee. The court did suggest that it would be more appropriate to calculate commissions under sections 2308 and 2309 of the SCPA, which govern commissions of trus- tees. Today section 2312 of the SCPA, governing the commissions of corporate trustees, must be added to the list of potentially applicable provisions. This proposal amends the SCPA to make the provisions applicable to trus- tees' commissions applicable to all donees of powers in trust. The specific sections of the SCPA to be amended are 2306, 2307, 2308, 2309, 2312, and 2313. The amendments to sections 2308, 2309, and 2312 use the language "donee of a power in trust" in order to make sure that every sort of power in trust that could still exist under the common law is included in the new provisions. Each section has also been amended to make it clear that the new language includes donees of powers during minority. The phrase "donee of a power in trust" has been added to every reference to "trus- tee" except in those provisions dealing with trustees of charitable trusts and those providing for the transition from the previous rules governing commissions. Because donees of a power in trust will be enti- tled to trustees' commissions only from the enactment of these amend- ments, the transition rules are not relevant. The term "property subject to the power in trust" has been used as the equivalent of "trust proper- ty" and the term "calendar year" has been added to references to "trust year" because the property subject to the power does indeed belong to the beneficiary of the power, the items of income and deduction attrib- utable to it would be included in the beneficiary's gross income reported on IRS form 1040 and the tax year would indeed be the calendar year. This measure would have no fiscal impact upon the State and would be applicable to donees of powers during minority and of other powers in trust effective on the first day of January next succeeding the date on which this measure becomes law, thus avoiding the need for proration of commissions in the initial year of the new regime. 2015-16 LEGISLATIVE HISTORY: OCA 2015-17 Assembly 9879 (M. of A. Buchwald) (PASSED) 2017-18 LEGISLATIVE HISTORY: OCA 2017-50 Assembly 6046 (M. of A. Buchwald) (PASSED) * Report of Temporary State Comm. on Modernization, Revision and Simplification of Law of Estates, Fourth Report, N.Y. Legis. Doc., 1965 No. 19, at 24. ** See Matter of Schaper, 151 Misc.2d 923 (Sur. Ct. New York County 1991) *** 129 Misc.2d 952 (Sur. Ct. New York County 1985).
2019-S5512 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
5512
2019-2020 Regular Sessions
I N S E N A T E
May 3, 2019
___________
Introduced by Sen. HOYLMAN -- (at request of the Office of Court Admin-
istration) -- read twice and ordered printed, and when printed to be
committed 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:
§ 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.
§ 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10140-01-9
S. 5512 2
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
there be more than one, apportion among them according to the services
rendered by them respectively the following commissions:
§ 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:
§ 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.
S. 5512 3
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:
(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; 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
S. 5512 4
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,
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 DONEE OF THE
POWER IN TRUST unless there are more than 3, in which case the compen-
S. 5512 5
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
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,
S. 5512 6
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 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 DONEES OF A POWER IN TRUST OVER PROPERTY having a value of
$400,000 or more, of a trust OR TO DONEES OF A POWER IN TRUST OVER PROP-
ERTY 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 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 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 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 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 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
S. 5512 7
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
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
S. 5512 8
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 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
S. 5512 9
POWER IN TRUST" SHALL MEAN ANY SUCH DONEE INCLUDING A DONEE OF A POWER
DURING MINORITY WHO IS NOT A CORPORATE FIDUCIARY OF A DONEE OF A POWER
DURING MINORITY WITH THE RIGHTS AND DUTIES OF A GUARDIAN UNDER SECTION
1714 OF THIS CHAPTER provided, however, that as used in subdivision 6 of
this section, the term trustee shall include a corporate trustee.
§ 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 laws
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:
§ 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
S. 5512 10
the trustee at the beginning of, the calendar year for which the commis-
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
S. 5512 11
year AND IN THE CASE OF PROPERTY SUBJECT TO A POWER IN TRUST COMMISSIONS
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-
S. 5512 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 DONEES OF A POWER IN TRUST OVER
PROPERTY having a value of $400,000 or more, or 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 begin-
ning 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 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
S. 5512 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] PERCENT 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
S. 5512 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
FOR A DONEE OF A POWER IN TRUST he OR SHE is not entitled to any other
allowances 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.
§ 5. Section 2312 of the surrogate's court procedure act, as added by
chapter 936 of the laws of 1984, subdivisions 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:
§ 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-
S. 5512 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
S. 5512 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
S. 5512 17
corporate trustee INCLUDING A CORPORATE TRUSTEE ACTING AS DONEE OF A
POWER IN TRUST THE 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
S. 5512 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.
§ 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:
§ 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.
§ 7. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.
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