N.Y. Surrogate's Court Procedure Act § 2312: Commissions of corporate trustees, including when acting as donees of powers during minority or donees of power in trust 1

§ 2312. Commissions of corporate trustees, including when acting as

donees of powers during minority or donees of power in trust

1. If the will or lifetime trust instrument makes provisions for

specific rates or amounts of commissions (other than a general reference

to commissions allowed by law or words of like import) for a corporate

trustee, or, if a corporate trustee has agreed to accept specific rates

or amounts of commissions, a corporate trustee, whether as trustee or as

donee of a power in trust, including for purposes of this section as

donee of a power during minority, created under the provisions of the

will or lifetime trust instrument, shall be entitled to be compensated

in accordance with such provisions or agreement, as the case may be.

2. For trusts having a principal value of more than four hundred

thousand dollars and as donee of a power in trust where the property

subject to the power, including for purposes of this section the

property subject to a power during minority, has a principal value of

more than four hundred thousand dollars and subject to the provisions of

subdivision 4 of this section, if the will or lifetime trust instrument

does not make provisions for specific rates or amounts of commissions,

or, contains only a general reference to commissions allowed by law or

words of like import, a corporate trustee shall be entitled to such

commissions as may be reasonable, and the court, upon application of a

person interested in the trust or in the fund held by the corporate

trustee as donee of a power in trust, may review the reasonableness of

the commission of such corporate trustee.

3. Subject to the provisions of paragraph (a) of subdivision 4 of this

section and regardless of the principal value of the trust: (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 established after the

termination of a life use or uses a corporate trustee, except as

provided in paragraph (b) of this subdivision, shall be entitled to and

may retain annual commissions in accordance with the provisions of

subdivision 1 or 2 of this section, as the case may be.

(b) In the case of a trust created solely for public, religious,

charitable, scientific, literary, educational or fraternal uses a

corporate trustee shall not be entitled to any commission for paying out

principal.

(c) In the case of such a trust which continues after the termination

of the measuring life use or uses a corporate trustee for the period of

the measuring life use or uses shall be entitled to commissions from

income and principal according to the provisions of subdivision 1 or 2

hereof, as the case may be, 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 in accordance with the provisions

of subdivision 1 or 2 hereof, as the case may be.

4. Notwithstanding anything contained in this chapter, the estates,

powers and trusts law or any other provision of law to the contrary,

(a) Except as otherwise provided by paragraph (b) of this subdivision

and subdivision three of this section, a corporate trustee of any trust

created under will or lifetime trust instrument, or as donee of a power

in trust created under will or lifetime instrument, whether in existence

on or after the effective date of this section, shall be entitled to

receive at least the compensation provided for an individual trustee

under subdivisions 1, 2, 5 (but only as trustee), 6, 7 and 12 of section

2308 and subdivisions 1, 2, 5 (but only as trustee), 6, 7 and 8 of

section 2309, as the case may be, in effect after the effective date of

this section, at the time and in the manner provided by such sections,

unless the will or lifetime trust instrument or an agreement between the

trustee and the testator or grantor or by the trustee shall provide

otherwise.

(b) A corporate trustee shall, in addition to the compensation

permitted by the provisions of paragraph (a) of this subdivision, be

entitled to annual commissions at the rate of not more than $12.35 per

thousand or major fraction thereof, in lieu of the annual commissions

provided under paragraph (a) of this subdivision, on trusts having a

principal value of not more than four hundred thousand dollars and shall

be entitled to annual commissions at the same rate as donee of a power

in trust where the property subject to the power has a principal value

of not more than four hundred thousand dollars, and such annual

commissions shall be deemed reasonable compensation, unless the will or

lifetime trust instrument or an agreement between the corporate trustee

and the testator or grantor or by the corporate trustee shall provide

otherwise. A corporate trustee shall be entitled to receive such

commissions from time to time during the trust or calendar year and

shall otherwise be governed by the provisions of sections 2308 and 2309,

as the case may be, in effect from time to time.

5. Unless the will or lifetime trust instrument expressly provides

otherwise, the commissions allowable by subdivision 1, 2 or 4 hereof, as

the case may be, shall be payable one-third from the income of the trust

or from the income of the property subject to the power in trust and

two-thirds from the principal of the trust or from the property subject

to the power in trust. However, in the case of a trust whose definition

of income is governed by section 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

commissions shall be payable from the principal of any such trust after

allowance for the annuity or unitrust amounts and shall not be payable

out of such annuity or unitrust amounts.

6. The commissions allowed by subdivision 1, 2 or 4 thereof, as the

case may be, may be retained, at any time or from time to time during

the year in which such commissions are earned, by a corporate trustee,

provided it furnishes annually as of a date no more than 30 days prior

to the end of the year selected by the corporate 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, and, when acting as donee

of a power in trust, to the beneficiary of the power in trust, a

statement showing the principal assets or assets subject to the power in

trust on hand on that date, and at least annually or more frequently if

the trustee so elects, a statement showing all his or her receipts of

income and principal or of property subject to the power in trust 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 corporate trustee shall not be deemed to

have waived any commissions by reason of its failure to retain them at

the time when it becomes entitled thereto; provided however that

commissions payable from income for any such year shall be allowed and

retained only from income derived from the trust during such year and

shall not be supplied from income on hand in respect of any other year.

If a beneficiary receiving income or a beneficiary of a power in trust

of which the corporate trustee is donee does not desire to be furnished

with any such statements his or her advice to the trustee to that effect

in writing shall thereafter excuse the corporate trustee from furnishing

such statements to the beneficiary unless and until the beneficiary

requests such annual statements from the trustee. Upon enactment of, and

subject to subdivision 1 of this section, a corporate trustee shall

continue to receive commissions in the manner provided for a trustee or

when acting as donee of a power in trust in the manner provided for a

donee of a power in trust under sections 2308 and 2309, as the case may

be, in effect immediately before the effective date of this section

until the end of the then current trust or calendar year, and

thereafter, a corporate trustee may receive commissions in accordance

with the provisions of subdivision 2 or 4 of this section. A corporate

trustee shall not change from the commissions provided for by

subdivision 2 or 4 of this section, as the case may be, during a trust's

calendar or fiscal year or the calendar year in the case of a power in

trust but a corporate trustee may change from the commissions provided

for by subdivision 2 to the commissions provided for by subdivision 4 of

this section, or vice versa, only at the beginning of a calendar or

fiscal year of a trust or a calendar year in the case of a power in

trust, as the case may be.

7. On the settlement of the account of any trustee or donee of a power

in trust under a will or lifetime trust instrument, in addition to the

commissions provided for by this section, the court must allow to the

corporate trustee including a corporate trustee acting as donee of a

power in trust the corporate trustee's reasonable and necessary expenses

actually paid by the trustee.

8. 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, rents or

other income payable to a trustee or donee of a power in trust 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.

9. 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 or she shall have

received such maximum to 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 section 2308 as in effect immediately before

enactment of this section. A trustee who is 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 or she

would have been entitled to if he or she 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 section 285-a of this

act.

10. 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 or her 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 or she 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 or her he or she 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 or her

commission for receiving principal, may retain an amount equal to

one-half 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 of surrogate's court procedure act section

2308.

(d) The annual principal commissions allowed by subdivision 3 of

surrogate's court procedure act section 2308 as it existed on September

1, 1967 shall not be allowed by decree 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 by decree 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 by decree or

has retained commissions on any item of income received and paid out by

him or her prior to September 1, 1943 or on any item of income received

by him or her subsequent to September 1, 1943 he or she shall be

entitled to no further commission on the item.

(f) For purposes of this section, the term "donee of a power in trust"

shall mean any such donee including a donee of a power during minority

who is a corporate fiduciary and the term "property subject to the power

in trust" shall include property subject to a power during minority.