2006 New York Code - Powers, Duties And Limitations

 
  § 11-1.1 Fiduciaries' powers
    (a)  As  used  in  this  section, unless the context or subject matter
  otherwise requires,  (1)  the  term  "estate"  means  the  estate  of  a
  decedent;  (2)  the  term  "trust"  means any express trust of property,
  created by a will, deed or other instrument, whereby  there  is  imposed
  upon  a  trustee  the  duty  to administer property for the benefit of a
  named or otherwise described income or principal beneficiary, or both. A
  trust shall not include trusts for the benefit of  creditors,  resulting
  or constructive trusts, business trusts where certificates of beneficial
  interest  are  issued  to  the  beneficiary,  investment  trusts, voting
  trusts, security instruments such  as  deeds  of  trust  and  mortgages,
  trusts  created  by  the  judgment  or decree of a court, liquidation or
  reorganization trusts, trusts for the sole purpose of paying  dividends,
  interest,  interest  coupons,  salaries,  wages,  pensions  or  profits,
  instruments wherein persons are mere  nominees  for  others,  or  trusts
  created  in  deposits  in  any  banking  institution or savings and loan
  institution; (3) the term "fiduciary" means  administrators,  executors,
  preliminary    executors,    administrators    d.b.n.,    administrators
  c.t.a.d.b.n.,  administrators  c.t.a.,  ancillary  executors,  ancillary
  administrators,  ancillary  administrators c.t.a and trustees of express
  trusts, including a corporate as well as  a  natural  person  acting  as
  fiduciary,  and  a successor or substitute fiduciary, whether designated
  in a trust instrument or otherwise.
    (b) In the absence of contrary or limiting  provisions  in  the  court
  order  or  decree  appointing  a  fiduciary, or in a subsequent order or
  decree, or in the will, deed or other  instrument,  every  fiduciary  is
  authorized:
    (1) To accept additions to any estate or trust from sources other than
  the estate of the decedent or the settlor of a trust. (2) To acquire the
  remaining  undivided  interest  in the property of an estate or trust in
  which the fiduciary, in  his  fiduciary  capacity,  holds  an  undivided
  interest.
    (3)  To  invest and reinvest property of the estate or trust under the
  provisions of the  will,  deed  or  other  instrument  or  as  otherwise
  provided by law.
    (4) To effect and keep in force fire, rent, title, liability, casualty
  or other insurance to protect the property of the estate or trust and to
  protect the fiduciary.
    (5)  With  respect  to  any property or any estate therein owned by an
  estate or trust, except where such property or  any  estate  therein  is
  specifically disposed of:
    (A) To take possession of, collect the rents from and manage the same.
    (B)  To  sell the same at public or private sale, and on such terms as
  in the opinion of the fiduciary  will  be  most  advantageous  to  those
  interested therein.
    (C)  With  respect  to  fiduciaries other than a trustee, to lease the
  same for a term not exceeding three years and, in the case of a trustee,
  to lease the same for a term not exceeding ten years although such  term
  extends  beyond  the duration of the trust and, in either of such cases,
  including the right to explore for and remove mineral or  other  natural
  resources,  and  in connection with mineral leases to enter into pooling
  and unitization agreements.
    (D) To mortgage the same.
    (E) Any power to take possession of, collect the  rent  from,  manage,
  sell,  lease  or  mortgage,  granted  by this subparagraph (5), which is
  prohibited by the terms of the will, deed or other instrument or by  the
  provisions  of  this  subparagraph  (5),  nonetheless  exists,  upon the
  approval of the  surrogate,  where  such  power  is  necessary  for  the
  purposes set forth in SCPA 1902.
    (F)  A  fiduciary  acting  under a will may exercise all of the powers
  granted by this subparagraph (5) notwithstanding the  effect  upon  such
  will of the birth of a child after its execution or of any election by a
  surviving spouse.
    (6) To make ordinary repairs to the property of the estate or trust.
    (7)  To  grant  options  for  the  sale  of  property for a period not
  exceeding six months.
    (8) With respect to any mortgage held by the estate or  trust  (A)  to
  continue  the  same  upon and after maturity, with or without renewal or
  extension, upon such terms as the  fiduciary  deems  advisable;  (B)  to
  foreclose,  as  an  incident  to  collection  of  any  bond or note, any
  mortgage securing such bond or  note,  and  to  purchase  the  mortgaged
  property  or  acquire the property by deed from the mortgagor in lieu of
  foreclosure.
    (9) To employ any bank or trust company incorporated  in  this  state,
  any  national  bank  located  in  this  state or any private banker duly
  authorized by the superintendent of banks of this  state  to  engage  in
  business  here (who, as private banker, maintains a permanent capital of
  not less than one million dollars) as custodian of any  stock  or  other
  securities held as a fiduciary, and the cost thereof, except in the case
  of  a  corporate  fiduciary, shall be a charge upon the estate or trust.
  The records of such bank, trust company or private banker shall  at  all
  times  show  the ownership of such stock or other securities. Such stock
  or other securities shall at all times be kept separate from the  assets
  of  such  bank,  trust company or private banker and may be kept by such
  bank, trust company or private banker
    (A) in a manner such that all certificates representing the securities
  from time to time constituting the assets of a particular estate,  trust
  or  other  fiduciary  account  are held separate from those of all other
  estates, trusts or accounts; or
    (B) in a manner such  that,  without  certification  as  to  ownership
  attached,  certificates representing securities of the same class of the
  same issuer and from time to  time  constituting  assets  of  particular
  estates, trusts or other fiduciary accounts are held in bulk, including,
  to   the   extent   feasible,  the  merging  of  certificates  of  small
  denomination into  one  or  more  certificates  of  large  denomination,
  provided  that  a  bank, trust company or private banker, when operating
  under the method of safekeeping security certificates described in  this
  subparagraph  (B), shall be subject to such rules and regulations as, in
  the case of state chartered institutions, the state banking  board  and,
  in  the  case  of  national banking associations, the comptroller of the
  currency may from time to  time  issue.  Such  bank,  trust  company  or
  private banker shall, on demand by the fiduciary, certify in writing the
  securities held by it for such estate, trust or fiduciary account.
    (10)  To  cause any stock or other securities (hereinafter referred to
  as "securities") held by any bank  or  trust  company,  when  acting  as
  fiduciary, whether alone or jointly with an individual, with the consent
  of  the  individual  fiduciary, if any (who is hereby authorized to give
  such consent), to be registered and held in the name  of  a  nominee  of
  such   bank  or  trust  company  without  disclosure  of  the  fiduciary
  relationship; and, in the case of an individual acting as fiduciary,  to
  direct  any  bank  or  trust company incorporated under the laws of this
  state, any national bank located in this state  or  any  private  banker
  duly  authorized  by the superintendent of banks of this state to engage
  in business here (who, as private banker, maintains a permanent  capital
  of  not  less  than  one  million  dollars)  to  register  and  hold any
  securities deposited with such bank, trust  company  or  private  banker
  (hereinafter  referred  to  as  "bank") in the name of a nominee of such
  bank. The bank shall not redeliver such  securities  to  the  individual
  fiduciary, who authorized their registration in the name of a nominee of
  the  bank,  without  first registering the securities in the name of the
  individual fiduciary, as such. But, any sale of such securities  by  the
  bank  at  the direction of the individual fiduciary shall not be treated
  as a redelivery. The bank may make any disposition  of  such  securities
  which  is  authorized  or  directed  by  an order or decree of the court
  having jurisdiction of the estate or  trust.  Any  such  bank  shall  be
  absolutely  liable  for  any  loss occasioned by the acts of its nominee
  with respect to the securities so registered. The records  of  the  bank
  shall  at  all  times  show  the ownership of any such securities and of
  those held in bearer form. Such securities and those held in bearer form
  shall at all times be kept separate from the assets of the bank and  may
  be kept by such bank
    (A) in a manner such that all certificates representing the securities
  from  time to time constituting the assets of a particular estate, trust
  or other fiduciary account are held separate from  those  of  all  other
  estates, trusts or accounts; or
    (B)  in  a  manner  such  that,  without certification as to ownership
  attached, certificates representing securities of the same class of  the
  same  issuer  and  from  time  to time constituting assets of particular
  estates, trusts or other fiduciary accounts are held in bulk, including,
  to  the  extent  feasible,  the  merging  of   certificates   of   small
  denomination  into  one  or  more  certificates  of  large denomination,
  provided that a bank, when operating under  the  method  of  safekeeping
  security  certificates  described  in  this  subparagraph  (B), shall be
  subject to such rules and regulations as, in the case of state chartered
  institutions, the state banking board  and,  in  the  case  of  national
  banking  associations,  the comptroller of the currency may from time to
  time issue. Such bank or trust company shall, on demand by any party  to
  an accounting by such bank or trust company as fiduciary or on demand by
  the  attorney  for such party, certify in writing the securities held by
  such bank or trust company as such fiduciary.
    (11) In the case of the  survivor  of  two  or  more  fiduciaries,  to
  continue  to  administer the property of the estate or trust without the
  appointment of a successor to the fiduciary who has ceased to act and to
  exercise or perform all of the powers given to the original  fiduciaries
  unless  contrary  to  the  express  provision of the will, deed or other
  instrument.
    (12) As successor or substitute fiduciary, to succeed to  all  of  the
  powers, duties and discretion of the original fiduciary, with respect to
  the estate or trust, as were given to the original fiduciary, unless the
  exercise  of such powers, duties or discretion of the original fiduciary
  are expressly prohibited by the will, deed or other  instrument  to  any
  successor or substituted fiduciary.
    (13)  To contest, compromise or otherwise settle any claim in favor of
  the estate, trust or fiduciary or in favor of third persons and  against
  the estate, trust or fiduciary.
    (14) To vote in person or by proxy, discretionary or otherwise, shares
  of stock or other securities held by him as fiduciary.
    (15)  To  pay  calls,  assessments  and  any  other sums chargeable or
  accruing against or on account of shares of stock, bonds, debentures  or
  other  corporate  securities held by a fiduciary, whenever such payments
  may be legally enforceable against the fiduciary or any property of  the
  estate  or  trust  or  the fiduciary deems payment expedient and for the
  best interests of the estate or trust.
    (16) To sell or exercise  stock  subscription  or  conversion  rights,
  participate in foreclosures, reorganizations, consolidations, mergers or
  liquidations,   and   to   consent   to   corporate  sales,  leases  and
  encumbrances. In the exercise of such powers the fiduciary is authorized
  to  deposit  stocks,  bonds  or  other securities with any protective or
  other similar committee under such terms and conditions  respecting  the
  deposit thereof as the fiduciary may approve.
    (17)  To  execute  and deliver agreements, assignments, bills of sale,
  contracts, deeds, notes, receipts and any other instrument necessary  or
  appropriate for the administration of the estate or trust.
    (18)  In  the  case  of a trustee, to hold the property of two or more
  trusts or parts of such trusts created by  the  same  instrument  as  an
  undivided  whole  without  separation  as  between such trusts or parts,
  provided that  such  separate  trusts  or  parts  shall  have  undivided
  interests  and  provided  further  that  no such holding shall defer the
  vesting of any estate in possession or otherwise.
    (19) When a legacy, a distributive share, the proceeds of  any  action
  brought  as  prescribed  by 5-4.1, or the proceeds of a settlement of an
  action brought in behalf of an infant for personal injuries are  payable
  to  an  infant,  incompetent, conservatee or person under disability and
  the sum does not exceed ten thousand dollars, to make payment thereof to
  the father or mother or to some competent adult  person  with  whom  the
  infant,  incompetent,  conservatee or person under disability resides or
  who has some interest in his welfare for the use  and  benefit  of  such
  infant,  incompetent, conservatee or person under disability. If the sum
  payable to a patient in an institution in the state department of mental
  hygiene is not in excess  of  the  amount  which  the  director  of  the
  institution  is  authorized to receive under section 29.23 of the mental
  hygiene law, to make payment of such sum to such  director  for  use  as
  provided in that section.
    (20)  To  make distribution in cash, in kind valued at the fair market
  value of the property at the date of distribution, or  partly  in  each,
  without  being  required  to  make  pro  rata  distributions of specific
  property.
    (21) To join with the surviving spouse or the executor of his will  or
  the  administrator  of his estate in the execution and filing of a joint
  income tax return for any period prior to the death of  a  decedent  for
  which  he  has  not filed a return or a gift tax return on gifts made by
  the decedent's surviving spouse, and to consent to treat such  gifts  as
  being  made  one-half  by  the  decedent,  for  any  period  prior  to a
  decedent's death, and to pay such taxes thereon as are chargeable to the
  decedent.
    (22) In addition to those expenses specifically provided for  in  this
  paragraph,   to   pay  all  other  reasonable  and  proper  expenses  of
  administration from the property of the estate or trust,  including  the
  reasonable  expense  of  obtaining  and  continuing  his  bond  and  any
  reasonable counsel fees he may necessarily incur.
    (c) The court having jurisdiction of the estate or trust may authorize
  the fiduciary to exercise any other power which in the judgment  of  the
  court is necessary for the proper administration of the estate or trust.
    (d)  The  powers  set forth in this section shall apply to all estates
  and trusts now in existence or which may hereafter come  into  existence
  and are in addition to the powers granted by law or by the will, deed or
  other instrument.