N.Y. Estates, Powers & Trusts Law § 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.