2006 New York Code - Commissions Of Trustees Under Wills Of Persons Dying, Or Under Lifetime Trusts Created, On Or Before August 31, 1956

 
  § 2308. Commissions  of  trustees 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 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 his
  reasonable and necessary expenses actually paid by him and if he  be  an
  attorney  of  this  state  and  shall  have  rendered  legal services in
  connection with his official duties, such  compensation  for  his  legal
  services  as  shall appear to the court to be just and reasonable and in
  addition thereto it must allow  to  the  trustee  for  his  services  as
  trustee the following commissions from principal:
    (a) For receiving principal
    (1)  all  sums of money constituting principal not exceeding $2,000 at
  the rate of 3 per cent;
    (2) all additional sums of principal not exceeding $10,000 at the rate
  of 1 1/2 per cent;
    (3) all sums of principal above $12,000 at the rate of 1 1/4 per cent;
  and
    (b) For paying out principal 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 shall not be allowed to a trustee 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
  commissions  on any increments in property that are payable by reason of
  any sale, exchange or liquidation of such property shall be  allowed  on
  the  lesser  of  (1)  the amount of such increments on the date of sale,
  exchange or liquidation of such property and  (2)  the  amount  of  such
  increments  on  June  5, 1978; and such commissions on any increments in
  property that are payable by reason of any distribution of such property
  shall be allowed on the lesser of (1) the amount of such  increments  on
  the  date  of  distribution  of such property and (2) the amount of such
  increments on the effective date of this paragraph.
    2. In addition to the commission allowed by subdivision one a  trustee
  shall be entitled to annual commissions at the following rates:
    (a)  $10.50 per $1,000 or major fraction thereof on the first $400,000
  of principal;
    (b) $4.50 per $1,000 or major fraction thereof on the next $600,000 of
  principal; and
    (c) $3.00 per $1,000 or  major  fraction  thereof  on  all  additional
  principal.
    Such  annual  commissions shall be computed either on the value of the
  principal of  the  trust  at  the  end  of  the  period  for  which  the
  commissions  are  payable or, at the option of the trustee, on the value
  of the principal of the trust at the beginning of such period,  provided
  that  the  option  elected by the trustee for the first period for which
  such commissions are payable shall be used during the continuance of the
  trust and shall be binding on any successor  or  substitute  trustee  or
  trustees. In the case of a trust which prior to January 1, 1994 computed
  annual  commissions  on  the  basis  of  a 12 month period (other than a
  calendar year), the trustee's prior election of  such  12  month  period
  shall  be  binding unless, prior to January 1, 1995, the trustee makes a
  new election to compute annual commissions on the basis  of  a  calendar
  year either on the value of the principal of the trust at the end of, or
  at  the option of the trustee at the beginning of, the calendar year for
  which the commissions were payable, which new  election  shall  be  used
  during  the  remaining  continuance of the trust and shall be binding on
  any successor or substitute trustee or trustees. The  computation  shall


  be  made  on  the  basis of a 12 month period but the amount so computed
  payable to a trustee shall be proportionately reduced or  increased  for
  any payments made in partial distribution of the trust or receipt of any
  additional  property  into  the  trust  within  such period and shall be
  proportionately reduced in any period for  which  such  commissions  are
  payable  to  the  trustee  if the period is less than 12 months. For the
  purpose of computing the annual commissions the value of  any  principal
  asset  when  received by the trust shall be the presumptive value of the
  asset at the beginning and end of the period for which such  commissions
  are  payable.  In  computing the value of the principal of the trust the
  trustee may use the presumptive value in respect of any principal  asset
  or  may  use  the  actual  value  of the asset. On the settlement of the
  account of the trustee any person interested may dispute the  amount  of
  any  commission  claimed  or  retained.  The  burden of proving that the
  actual value of any principal asset differs from its  presumptive  value
  is upon the trustee or other person claiming the difference.
    3.   Unless   the  will  otherwise  explicitly  provides,  the  annual
  commissions allowed by subdivision two of this section shall be  payable
  one-third from the income of the trust and two-thirds from the principal
  of the trust. However, in the case of a trust whose definition of income
  is governed by 11-2.4 of the estates, powers and trusts law, 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
  trustee provided he furnishes annually as of a date  not  more  than  30
  days prior to the end of the trust year selected by the trustee, to each
  beneficiary  currently  receiving  income,  and to any other beneficiary
  interested in the income and to any person interested in  the  principal
  of  the  trust who shall make a demand therefor, a statement showing the
  principal assets on hand on that date, and at  least  annually  or  more
  frequently  if  the  trustee  so  elects,  a  statement  showing all his
  receipts of income and principal during the period with respect to which
  the statement is  rendered  including  the  amount  of  any  commissions
  retained  and  the  basis  upon  which  the commissions were computed. A
  trustee shall not be deemed to have waived any commissions by reason  of
  his failure to retain them at the time when he becomes entitled thereto;
  provided  however  that commissions from income for any given trust year
  shall be allowed and retained only from income derived  from  the  trust
  during  that  year  and  shall  not  be  supplied from income on hand in
  respect of any other trust year. If a beneficiary receiving income  does
  not  desire  to  be  furnished with any such statement his advice to the
  trustee to that effect in writing shall thereafter  excuse  the  trustee
  from  furnishing  such statement to the beneficiary unless and until the
  beneficiary requests such annual statements from the trustee.
    5. (a) During the continuance of a trust created  solely  for  public,
  religious,  charitable,  scientific,  literary, educational or fraternal
  uses and during the period of continuance of  such  a  trust  after  the
  termination  of  a life use or uses the trustee shall be entitled to and
  may retain commissions from income in an amount annually equal to 6  per
  cent of income collected in each year.
    (b)  In  the  case  of  a  trust created solely for public, religious,
  charitable, scientific, literary,  educational  or  fraternal  uses  the
  trustee shall not be entitled to any commission from principal.
    (c)  In the case of such a trust which continues after the termination
  of 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 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 accounted for
  amounts to $400,000 or more and  there  is  more  than  1  trustee  each
  trustee  is  entitled  to the full compensation for receiving and paying
  out principal allowed herein to a sole trustee  unless  there  are  more
  than 3, in which case the compensation to which 3 would be entitled must
  be  apportioned among the trustees according to the services rendered by
  them respectively, unless the trustees  shall  have  agreed  in  writing
  among  themselves to a different apportionment which, however, shall not
  provide for more than one full commission for any one of  them.  If  the
  gross value of the principal of the trust accounted for is:
    (i)  less  than  $100,000  and  there  is more than 1 trustee the full
  compensation for receiving and paying out principal allowed herein to  a
  sole  trustee  must  be apportioned among them according to the services
  rendered by them respectively, or
    (ii) $100,000 or more but less than $400,000, each trustee is entitled
  to the full compensation for receiving and paying out principal  allowed
  pursuant  to  this  subdivision  to a sole trustee unless there are more
  than 2 trustees in which case  the  full  compensation  for  paying  out
  principal  allowed  pursuant  to  this subdivision to 2 trustees must be
  apportioned among them  according  to  the  services  rendered  by  them
  respectively,
  unless  the  trustees  shall  have  agreed  in  writing between or among
  themselves to  a  different  apportionment  which,  however,  shall  not
  provide for more than one full commission for any one of them.
    (b) If  the  value  of  the  principal of the trust for the purpose of
  computing the annual commissions allowed by  subdivision  2  amounts  to
  $400,000  or  more  and  there  is more than one trustee each trustee is
  entitled to the full annual commission allowed herein to a sole  trustee
  unless  there  are  more than 3, in which case the annual commissions to
  which 3 would  be  entitled  must  be  apportioned  among  the  trustees
  according  to  the  services  rendered  by them respectively, unless the
  trustees shall have agreed in writing among themselves  to  a  different
  apportionment  which,  however, shall not provide for more than one full
  annual commission for any one of them. If the value of the principal for
  the purpose of computing the annual commission allowed by subdivision  2
  amounts to:
    (i)  less  than  $100,000  and there is more than 1 trustee the annual
  commissions from income and the annual commission allowed  herein  to  a
  sole  trustee  must  be  apportioned among the trustees according to the
  services rendered by them respectively, or
    (ii) $100,000 or more but less than $400,000, each trustee is entitled
  to the full annual commission allowed pursuant to this subdivision to  a
  sole  trustee  unless  there  are more than 2 trustees in which case the
  full annual commissions  allowed  pursuant  to  this  subdivision  to  2
  trustees  must  be  apportioned  among  them  according  to the services
  rendered by them respectively,
  unless the trustees shall  have  agreed  in  writing  between  or  among
  themselves  to  a  different  apportionment  which,  however,  shall not
  provide for more than one full annual commission for any  one  of  them.
  However,  if from a trust having a value of $400,000 or more, or if from
  a trust having a value of $100,000 or more but less  than  $400,000,  as
  the  case  may  be,  at  the  beginning of a trust year, any payments in
  partial distribution of the trust shall be made during the trust year so
  as to reduce the trust to a value of less than $400,000 or $100,000,  as
  the  case  may  be,  at  the  end  of  the  trust  year, then the annual
  commission allowed herein shall, on  a  proportionate  basis,  be  those


  allowed to a trustee of a trust having a value of $400,000 or more, of a
  trust  having a value of $100,000 or more but less than $400,000, as the
  case may be, for the period from the beginning of the trust year to  the
  date  of  the distribution and shall, on a proportionate basis, be those
  allowed to trustees of a trust having a value of either $100,000 or more
  but less than $400,000 or less than $100,000, as the case  may  be,  for
  the remainder of the trust year and the part of such commissions payable
  from  principal and computed from the beginning of the trust year to the
  date of distribution shall be charged ratably to the property  remaining
  in the trust and to the property distributed from the trust on the basis
  of  their  respective values. Further, if during a trust year additional
  property shall be received into a trust which had a value of  less  than
  $100,000, or into a trust which had a value of $100,000 or more but less
  than $400,000, as the case may be, at the beginning of the trust year so
  that  because of the additional property the trust 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 year, then the annual commission allowed herein shall, on a
  proportionate  basis,  be  those allowed to trustees of a trust having a
  value of less than $100,000, or to trustees of a trust having a value of
  $100,000 or more but less than $400,000, as the case  may  be,  for  the
  period  from  the beginning of the trust year to the date of the receipt
  of the additional property and shall, on a proportionate basis, be those
  allowed to trustees of a trust having a value of $100,000  or  more  but
  less  than  $400,000, or of a trust having $400,000 or more, as the case
  may be, for the remainder of the trust year.
    (c) Notwithstanding any provisions of paragraphs (a) and (b)  of  this
  subdivision  to  the  contrary,  if  during  the  continuance of a trust
  created solely for public, religious, charitable, scientific,  literary,
  educational  or fraternal uses or during the continuance of such a trust
  after the termination of a life use or uses, the annual  income  of  the
  trust  amounts  to $4,000 or more and there is more than 1 trustee, each
  trustee is entitled to the full commission allowed under  subdivision  5
  to  a  sole  trustee  unless  there  are  more than 2, in which case the
  commissions to which 2 trustees would be entitled  must  be  apportioned
  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; 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
  apportionment.
    7. Where a trustee is for any reason entitled or required  to  collect
  the  rents of and manage real property the net amount of rents collected
  and not the  gross  amount  shall  be  used  in  making  computation  of
  commissions  allowed  by  subdivision  5  hereof  and in addition to the


  commissions herein provided he shall be allowed and may retain for  such
  services  6  per  cent  of the gross rents collected, but there shall be
  only 1 such additional commission regardless of the number of  trustees.
  If  there  are  2  or  more  trustees  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
  commissions  for  the  period  from  the date when he shall receive such
  maximum and  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 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  would  have  been  entitled  to  if  he  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
  entitled  to  have  commissions  on  principal  and  income  theretofore
  received  by him 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 shall be entitled to no further commissions  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  he 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
  commission 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
  commission for receiving principal, may retain an amount equal to 1/2 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.
    (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


  prior to September 1, 1943 or on any item of  income  collected  by  him
  subsequent  to  September  1,  1943  he  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
  commissions.  Whenever  any portion of the dividends, interests or rents
  payable to a trustee is required by any law  of  the  United  States  or
  other  governmental  unit  to  be  withheld  by the person paying it for
  income tax purposes, the amount so withheld shall be deemed to have been
  collected.
    11. Where the will provides a specific compensation to a trustee he is
  not entitled to any other allowances for his services.
    12. If a trustee of a 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 shall
  be deemed a separate trust for purposes  of  this  subdivision  and  the
  trustee 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 provided,  however,  that  as
  used  in subdivision 6 of this section, the term trustee shall include a
  corporate trustee.