2012 New York Consolidated Laws
EPT - Estates, Powers & Trusts
Article 11 - FIDUCIARY: POWERS, DUTIES AND LIMITATIONS; ACTIONS BY OR AGAINST IN REPRESENTATIVE OR INDIVIDUAL CAPACITIES
Part 1 - (11-1.1 - 11-1.11) FIDUCIARIES: POWERS, DUTIES AND LIMITATIONS
11-1.1 - Fiduciaries' powers

 
  § 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 financial services 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  superintendent  of
  financial  services  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 financial services 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 superintendent of financial services 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.