N.Y. Surrogate's Court Procedure Act § 2311: Ex parte application for advance payment of commissions 1

§ 2311. Ex parte application for advance payment of commissions

1. At any time during the administration of an estate and irrespective

of the pendency of a particular proceeding a fiduciary may present to

the court from which his letters issued a petition praying that he be

permitted to receive a sum on account of the commissions to which he

would be entitled if he were then filing his account and it were

judicially settled, which must show that unless he is allowed such sum

on account of commissions he or the estate will be deprived of

substantial advantages under the income tax laws of the United States or

the state of New York or that he will suffer inconvenience or hardship

or that all persons whose rights or interests would be affected by the

payment applied for are persons under no legal disability and have by

acknowledged instrument consented thereto. No notice of the application

shall be required by the court.

2. If the application be entertained the court may award a sum on

account of commissions or make such other order or decree, if any, as

justice shall require.

3. In all cases where a payment on account of commissions is directed

by the court the payment on account shall not exceed the receiving

commissions due the fiduciary, except that the court may award a greater

sum where all persons whose rights or interests are affected by the

payment are persons under no legal disability and by acknowledged

instrument consent thereto.

4. The total expenses of the application shall be borne by the

fiduciary, by the estate, or shall be apportioned between them in such

ratio as the court may determine according to the benefit derived from

the payments.

5. The order or decree authorizing the payment on account shall

require the fiduciary to file a bond in the amount of the payment

securing its return if and to the extent that the payment is disallowed,

except that no such bond shall be required where the fiduciary has

already filed a bond pursuant to law or is a corporate fiduciary or

where all persons whose rights or interests would be affected by the

payment are persons under no legal disability and by acknowledged

instrument consent to waive a bond or where the will specifically

dispenses with such a bond.