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SECTION 2309
Commissions of trustees, of donees of powers during minority and of donees of powers in trust under wills of persons dying, or lifetime t...
Surrogate's Court Procedure Act (SCP) CHAPTER 59-A, ARTICLE 23
§ 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 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
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.

(c) $3.00 per $1,000 or major fraction thereof on all additional
principal 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
commissions on the basis of a 12 month period (other than a calendar
year), the trustee's prior election of such 12 month period shall be
binding unless, prior to January 1, 1995, the trustee makes a new
election to compute annual commissions on the basis of a calendar year
either on the value of the principal of the trust at the end of, or at
the option of the trustee at the beginning of, the calendar year for
which the commissions were payable, which new election shall be used
during the remaining continuance of the trust and shall be binding on
any successor or substitute trustee or trustees. The computation shall
be made on the basis of a 12-month period but the amount so computed
payable to a trustee shall be proportionately reduced or increased for
any payments made in partial distribution of the trust or the receipt of
any additional property into the trust within such period and shall be
proportionately reduced in any period for which such commissions are
payable to the trustee if the period is less than 12 months. For the
purpose of computing the annual commissions the value of any principal
asset when received by the trust or donee of a power in trust shall be
the presumptive value of the asset at the beginning and end of the
period for which such commissions are payable. In computing the value of
the principal of the trust 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 principal 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
payable 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
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 annual commissions shall be payable from the corpus of
any such trust after allowance for the annuity or unitrust amounts and
shall not be payable out of such annuity or unitrust amounts.

4. The commissions allowed by subdivision 2 may be retained by a
trustee provided he 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
commissions payable from income for any given trust year shall be
allowed and retained only from income derived from the trust during that
year and shall not be supplied from income on hand in respect of any
other trust year 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 calendar 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 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,
charitable, scientific, literary, educational or fraternal uses the
trustee shall not be entitled to any commission from principal.

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

6. (a) Subject to section 2313 regarding multiple commissions of
executors, 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
entitled 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 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
apportionment 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
executors, 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
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 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
trustee 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
property 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
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 or still
subject to the power in trust after such distribution and to the
property 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
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 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
apportionment.

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 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 additional commission
herein provided for must be apportioned among them according to the
services rendered by them respectively unless they shall have agreed in
writing among themselves to a different apportionment.

8. If a trustee 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 percent of the first $2,500 of
such income distributed during the administration of the trust and 1
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
commissions. 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.