2006 New York Code - Commissions Of Trustees Under Wills Of Persons Dying, Or Lifetime Trusts Established, After August 31, 1956

 
  § 2309. Commissions  of  trustees  under  wills  of  persons  dying,  or
            lifetime trusts established, after August 31, 1956
    1. On the settlement of the account of any trustee 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 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  a  commission  from  principal for paying out all sums of money
  constituting principal at the rate of 1 per cent.
    2. In addition to the commission allowed by  subdivision  1  hereof  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.
    (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 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 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 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 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 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 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, 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  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. If a beneficiary receiving income
  does not desire to be furnished with any such statements 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  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 2313 regarding multiple commissions of executors or
  trustees under wills of persons dying, or lifetime  trusts  established,
  after  August 31, 1993, 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 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 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 paying out principal allowed herein to a
  sole trustee unless there are more than 2 trustees  in  which  case  the
  full  compensation for paying out principal allowed herein 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) Subject  to  2313  regarding  multiple commissions of executors or
  trustees under wills of persons dying, or lifetime  trusts  established,
  after  August  31,  1993, 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 dif-
  ferent 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
  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 herein to a  sole  trustee  unless
  there are more than 2 trustees in which case the full annual commissions
  allowed herein 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
  commissions  allowed  herein  shall,  on a proportionate basis, be those
  allowed to trustees of a trust having a value of $400,000 or more, or 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 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 year, then the annual
  commissions 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 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 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 shall be allowed and may retain for such services 6
  per cent of the gross rents collected, but there shall be only one  such
  additional commission regardless of the number of trustees. If there are
  2 or more trustees 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 is either authorized or required by the terms of the
  will to accumulate income for any purpose permitted by law he  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  of  the  first  $2,500  of such income distributed during the
  administration  of  the  trust  and  1  per  cent  of  all  such  income
  distributed  in  excess  of $2,500 and he 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  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 he
  is not entitled to any other allowances for his services.


    11. 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.