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COSTS, ALLOWANCES AND COMMISSIONS Section 2301. Costs, general. 2302. Award of costs and allowances. 2303. Security for costs. 2304. Costs of appeal. 2305. Fees of appraiser. 2306. Annual statements to be furnished to beneficiaries. 2307. Commissions of fiduciaries other than trustees. 2307-a. Commissions of attorney-executor. 2308. Commissions of trustees under wills of persons dying, or under lifetime trusts created, on or before August 31, 1956. 2309. Commissions of trustees under wills of persons dying, or lifetime trusts established, after August 31, 1956. 2310. Payment on account of commissions. 2311. Ex parte application for advance payment of commissions. 2312. Commissions of corporate trustees. 2313. Multiple commissions of executors or trustees under wills of persons dying, or lifetime trusts established, after August 31, 1993. S 2301. Costs, general 1. Costs and allowances in the court shall be awarded solely in accordance with this article and shall include all disbursements of the party awarded costs which might be taxed in the supreme court. 2. Any award for costs or an allowance is in all instances discretionary with the court. The amount allowed must be fixed by the court and inserted in the decree or order. 3. All costs taxed and any allowance granted to reimburse a party in part or in whole for counsel fees or other expenses necessarily paid or incurred shall be awarded to the party but the whole or any part thereof may be made payable to an attorney rendering services to the party in the proceeding or on the appeal, except as otherwise provided in subdivision 8 of the succeeding section. 4. Except where special provision is otherwise made by law costs or an allowance may be made payable by any party personally or out of the assets of the estate or out of the share or interest of any person or from both in such proportion as directed by the court and justice requires. 5. In any proceeding the court may direct that the grant of costs or an allowance be reserved for supplemental decree to be entered after the time to appeal has expired or if an appeal be taken, after final determination of the appeal. S 2302. Award of costs and allowances 1. Upon a motion the court may award costs to any party in such amount as it determines not exceeding $20 to each party, except in counties within the City of New York, where such amount shall not exceed $40. 2. Upon rendering a decree or in granting or denying an application to vacate a decree the court may award as costs such sum as it deems reasonable to the petitioner and to any other party who has succeeded in whole or in part in a contest or whose attorney, in the absence of a contest, has rendered services of substantial benefit to him, her or it, or to the estate, not exceeding (a) in counties within the City of New York: (i) $100 where there has not been a contest, or (ii) $300 where there has been a contest and $300 for each day, less one, necessarily occupied in the trial or hearing and in addition $100 for each day necessarily occupied in preparing therefore and $100 additional if a motion for a new trial is granted. (b) in all other counties: (i) $50 where there has not been a contest, or (ii) $150 where there has been a contest and $150 for each day, less one, necessarily occupied in the trial or hearing and in addition $50 for each day necessarily occupied in preparing therefore and $50 additional if a motion for a new trial is granted. 3. In a contested probate proceeding: (a) Costs payable out of the estate or otherwise may be awarded (1) to an unsuccessful contestant only if he, she or it be a guardian ad litem or guardian, committee or conservator of a person under disability; (2) to an unsuccessful proponent named as executor in the will when propounded by him, her or it in good faith as the last will of the decedent; and (3) to a person named as executor in a prior will on file in the court that is not admitted to probate when such person participates in the proceeding in good faith. Such nominated executor, guardian ad litem, guardian, committee or conservator, whether successful or not may be awarded costs and an allowance in such sum as the court deems reasonable for his, her or its counsel fees and other expenses incurred in the contest or attempt to sustain the will. The court may direct that such costs and allowances in whole or in part be payable by an unsuccessful contestant except that an award of the successful proponent`s counsel`s fees may only be allowed where the court finds that the contest was brought in bad faith or was frivolous. (b) Either before or after the decree granting probate the court may order that a copy of the minutes of the trial be furnished to a contestant for the purposes of appeal and charge the expense thereof initially to the estate if satisfied that the contest is in good faith. If the contestant be unsuccessful upon the appeal and he, she or it is not the guardian of an infant, the committee of an incompetent, the conservator of a conservatee or a guardian ad litem he, she or it shall refund to the estate any amount so paid by the estate for the minutes. 4. In a proceeding for probate of a will when the public administrator or county treasurer has been directed to probate a will or continue the proceedings for the probate thereof, the court may award to either of them such sum as it deems reasonable for his, her or its counsel fees and other expenses necessarily incurred therein. 5. After appeal, pursuant to the direction of the appellate court the court may award a fiduciary such sum as it deems reasonable for counsel fees and other expenses necessarily incurred on the appeal. 6. In a proceeding to construe a will or after appeal in such a proceeding, pursuant to the direction of the appellate court the court may award to a fiduciary or any party to the proceeding such sum as it deems reasonable for his, her or its counsel fees and other expenses necessarily incurred in the proceeding or on the appeal. 7. Upon a final or intermediate judicial settlement a fiduciary may be awarded for his, her or its expenses and counsel fees such sum as the court deems reasonable not exceeding: (a) within the counties of the City of New York: $100 for each day necessarily occupied in preparing the account and in drawing, entering and executing the decree. Any sum so awarded may be in addition to any costs, allowances or commissions otherwise authorized and awarded by the court. (b) in all other counties: $ 50 for each day necessarily occupied in preparing the account and in drawing, entering and executing the decree. Any sum so awarded may be in addition to any costs, allowances or commissions otherwise authorized and awarded by the court. 8. In a proceeding for disposition of real property a fiduciary may be awarded out of the proceeds of sale his, her or its commissions and such sum as the court deems reasonable for counsel fees and expenses necessarily incurred in the proceeding. S 2302. Award of costs and allowances 1. Upon a motion the court may award costs to any party in such amount as it determines not exceeding $20 to each party, except in counties within the City of New York, where such amount shall not exceed $40. 2. Upon rendering a decree or in granting or denying an application to vacate a decree the court may award as costs such sum as it deems reasonable to the petitioner and to any other party who has succeeded in whole or in part in a contest or whose attorney, in the absence of a contest, has rendered services of substantial benefit to him, her or it, or to the estate, not exceeding (a) in counties within the City of New York: (i) $100 where there has not been a contest, or (ii) $300 where there has been a contest and $300 for each day, less one, necessarily occupied in the trial or hearing and in addition $100 for each day necessarily occupied in preparing therefore and $100 additional if a motion for a new trial is granted. (b) in all other counties: (i) $50 where there has not been a contest, or (ii) $150 where there has been a contest and $150 for each day, less one, necessarily occupied in the trial or hearing and in addition $50 for each day necessarily occupied in preparing therefore and $50 additional if a motion for a new trial is granted. 3. In a contested probate proceeding: (a) Costs payable out of the estate or otherwise may be awarded (1) to an unsuccessful contestant only if he, she or it be a guardian ad litem or guardian, committee or conservator of a person under disability; (2) to an unsuccessful proponent named as executor in the will when propounded by him, her or it in good faith as the last will of the decedent; and (3) to a person named as executor in a prior will on file in the court that is not admitted to probate when such person participates in the proceeding in good faith. Such nominated executor, guardian ad litem, guardian, committee or conservator, whether successful or not may be awarded costs and an allowance in such sum as the court deems reasonable for his, her or its counsel fees and other expenses incurred in the contest or attempt to sustain the will. The court may direct that such costs and allowances in whole or in part be payable by an unsuccessful contestant except that an award of the successful proponent`s counsel`s fees may only be allowed where the court finds that the contest was brought in bad faith or was frivolous. (b) Either before or after the decree granting probate the court may order that a copy of the minutes of the trial be furnished to a contestant for the purposes of appeal and charge the expense thereof initially to the estate if satisfied that the contest is in good faith. If the contestant be unsuccessful upon the appeal and he, she or it is not the guardian of an infant, the committee of an incompetent, the conservator of a conservatee or a guardian ad litem he, she or it shall refund to the estate any amount so paid by the estate for the minutes. 4. In a proceeding for probate of a will when the public administrator or county treasurer has been directed to probate a will or continue the proceedings for the probate thereof, the court may award to either of them such sum as it deems reasonable for his, her or its counsel fees and other expenses necessarily incurred therein. 5. After appeal, pursuant to the direction of the appellate court the court may award a fiduciary such sum as it deems reasonable for counsel fees and other expenses necessarily incurred on the appeal. 6. In a proceeding to construe a will or after appeal in such a proceeding, pursuant to the direction of the appellate court the court may award to a fiduciary or any party to the proceeding such sum as it deems reasonable for his, her or its counsel fees and other expenses necessarily incurred in the proceeding or on the appeal. 7. Upon a final or intermediate judicial settlement a fiduciary may be awarded for his, her or its expenses and counsel fees such sum as the court deems reasonable not exceeding: (a) within the counties of the City of New York: $100 for each day necessarily occupied in preparing the account and in drawing, entering and executing the decree. Any sum so awarded may be in addition to any costs, allowances or commissions otherwise authorized and awarded by the court. (b) in all other counties: $ 50 for each day necessarily occupied in preparing the account and in drawing, entering and executing the decree. Any sum so awarded may be in addition to any costs, allowances or commissions otherwise authorized and awarded by the court. 8. In a proceeding for disposition of real property a fiduciary may be awarded out of the proceeds of sale his, her or its commissions and such sum as the court deems reasonable for counsel fees and expenses necessarily incurred in the proceeding. S 2304. Costs of appeal 1. The appellate court may award costs of the appeal as follows: (a) Upon an appeal in a proceeding to construe a will, to any party to the appeal. (b) Upon an appeal in any other proceeding, to any party who (i) has succeeded therein in whole or in part, or (ii) has participated therein as a fiduciary, guardian ad litem, guardian, committee or conservator of a person under disability, or (iii) is named as an executor in a paper propounded by him in good faith as the will of the decedent. 2. The court may direct that the costs shall abide the event of a new trial or of the subsequent proceedings in the surrogate`s court. 3. Costs may be made payable out of the estate, or if awarded to a successful party, personally by the unsuccessful party, as directed by the appellate court or if such direction be not given, as directed by the court. 4. Costs of an appeal awarded in the court shall be pursuant to CPLR 8203 and 8204. S 2305. Fees of appraisers An appraiser is entitled in addition to his actual expenses, to a sum to be fixed by the court for his services in making the appraisal. He shall file with the court an affidavit showing the nature and extent of his services, and expenses if any, and the sums payable therefor shall be taxed by the court and paid by the fiduciary. S 2306. Annual statements to be furnished to beneficiaries Any trustee who is not required to furnish annual statements under either 2308 or 2309 because he has not retained annual commissions shall nevertheless be required to furnish the annual statements referred to in those sections to any beneficiary receiving income or any person interested in the principal of the trust who shall request such statements. S 2307. Commissions of fiduciaries other than trustees 1. Except as otherwise provided in paragraph (f) of this subdivision on the settlement of the account of any fiduciary other than a trustee the court must allow to him the 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 appear to the court to be just and reasonable and in addition thereto it must allow to the fiduciary for his services as fiduciary, and if there be more than one, apportion among them according to the services rendered by them respectively the following commissions: (a) For receiving and paying out all sums of money not exceeding $100,000 at the rate of 5 percent. (b) For receiving and paying out any additional sums not exceeding $200,000 at the rate of 4 percent. (c) For receiving and paying out any additional sums not exceeding $700,000 at the rate of 3 percent. (d) For receiving and paying out any additional sums not exceeding $4,000,000 at the rate of 2 1/2 percent. (e) For receiving and paying out all sums above $5,000,000 at the rate of 2 percent. (f) If the will makes provisions for specific rates or amounts of commissions for a corporate executor, or, if a corporate executor has agreed to accept specific rates or amounts of commissions, or, if the will provides that a corporate executor shall receive commissions as provided or stipulated in the corporate executor`s published schedule of fees in effect at such time or times such commissions become payable, including a stipulated minimum commission and asset base for calculating such commissions, a corporate executor shall be entitled to be compensated in accordance with such provisions, agreement or schedule, as the case may be, even though such provisions, agreement or schedule are not executed in accordance with the provisions required for wills and are not attested as required for the recording of deeds in this state. Such commission shall be computed separately for receiving and for paying out sums of money, at one-half the statutory rates for receiving and at one-half the statutory rates for paying out sums of money. 2. 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 computing commissions. But this shall not apply in case of: (a) a specific legacy or devise; or (b) the recovery of awards from the September eleventh victim compensation fund of two thousand one established pursuant to title IV of the federal air transportation safety and system stabilization act, public law 107-42, as amended, which awards shall be valued at zero for purposes of this section. Whenever any portion of the dividends, interest or rent payable to a fiduciary other than 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 received and paid out. 3. In addition to the compensation hereinbefore provided the court may allow to the guardian of the person a sum of money to be fixed by it and paid by the guardian of the property out of the funds in his hands as compensation for services of the guardian of the person up to the time of the allowance. 4. If a guardian is required to receive income and pay it over and files an annual account as required by 1719 of all his receipts and disbursements, he shall be allowed and may retain the same commission on the amount of income so accounted for as he would be allowed upon principal on a judicial settlement. If the guardian fails to file an annual account as required by 1719 the guardian, notwithstanding his failure to retain in full each year the commissions on income herein prescribed, may be allowed upon the judicial settlement of his account any commissions due and theretofore uncollected by him provided that on such settlement there is then on hand income sufficient for that purpose derived from the estate during the respective years for which further commissions are claimed. If the income on hand for any given year is insufficient to pay the uncollected commissions on the income of that year the deficiency shall not be supplied from income on hand in respect of any other year. 5. 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 estate accounted for amounts to $300,000 or more each fiduciary is entitled to the full compensation on principal and income allowed herein to a sole fiduciary unless there be more than 3, in which case the compensation to which 3 would be entitled must be apportioned among them according to the services rendered by them respectively unless the fiduciaries 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 estate accounted for is: (a) less than $100,000 and there is more than 1 fiduciary the full compensation for receiving and paying out principal and income allowed herein to a sole fiduciary must be apportioned among them according to the services rendered by them respectively, or (b) $100,000 or more but less than $300,000 each fiduciary is entitled to the full compensation for receiving and paying out principal and income allowed herein to a sole fiduciary unless there are more than 2 fiduciaries in which case the full compensation for receiving and paying out principal and income allowed herein to 2 fiduciaries must be apportioned among them according to the services rendered by them respectively, unless the fiduciaries 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. Where the will provides a specific compensation to a fiduciary other than a trustee he is not entitled to any allowance for his services unless by an instrument filed with the court within 4 months from the date of his letters he renounces the specific compensation. Where successive or different letters are issued to the same person on the estate of the same decedent, including a case where letters of administration are issued to a person who has previously been appointed a temporary administrator, he is entitled to a total compensation equal to the compensation allowed for the full administration of the estate by a fiduciary acting in a single capacity only. Such total compensation shall be payable in such proportions and upon such accounting as shall be fixed by the court settling the account of the person holding successive or different letters but no paying out commissions shall be allowed except upon such sums as shall actually have been paid out at the time of the respective decrees for debts, expenses of administration or to beneficiaries. 6. Where a fiduciary is for any reason entitled or required to collect the rents of and manage real property he shall be allowed and may retain for such services 5 per cent of the gross rents collected therefrom in addition to the commissions herein provided, but there shall be only one such additional commission regardless of the number of fiduciaries. In the event there are 2 or more fiduciaries 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. 7. A fiduciary other than 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 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 fiduciary other than a trustee has been allowed or has retained commissions for receiving and paying out any item of principal or income he shall be entitled to no further commissions on the item. (b) If prior to July 1, 1956 a fiduciary other than a trustee has been allowed or has retained any commissions on any item of principal or income received but not paid out by him he shall be entitled to no further commissions for receiving the item. S 2307-a. Commissions of attorney-executor 1. Disclosure. When an attorney prepares a will to be proved in the courts of this state and such attorney or a then affiliated attorney is therein an executor-designee, the testator shall be informed prior to the execution of the will that: (a) subject to limited statutory exceptions, any person, including an attorney, is eligible to serve as an executor; (b) absent an agreement to the contrary, any person, including an attorney, who serves as an executor is entitled to receive an executor`s statutory commissions; and (c) if such attorney or an affiliated attorney renders legal services in connection with the executor`s official duties, such attorney or a then affiliated attorney is entitled to receive just and reasonable compensation for such legal services, in addition to the executor`s statutory commissions. 2. Testator`s written acknowledgment of disclosure. An acknowledgment by the testator of the disclosure required by subdivision 1 of this section must be set forth in a writing executed by the testator in the presence of at least one witness other than the executor-designee. Such writing may be executed prior to, concurrently with or subsequently to a will in which an attorney or a then affiliated attorney is an executor-designee and must be filed in the proceeding for the issuance of letters testamentary to the executor-designee. 3. Models of acknowledgment of disclosure. The following are models of the testator`s written acknowledgment of disclosure: (a) When set forth in a writing executed prior to or concurrently with a will: Prior to signing my will, I was informed that: (i) subject to limited statutory exceptions, any person, including an attorney, is eligible to serve as my executor; (ii) absent an agreement to the contrary, any person, including an attorney, who serves as an executor for me is entitled to receive statutory commissions for executorial services rendered to my estate; (iii) if such attorney serves as my executor, and he or she or another attorney affiliated with such attorney renders legal services in connection with the executor`s official duties, he or she is entitled to receive just and reasonable compensation for those legal services, in addition to the commissions to which an executor is entitled. ______________________ ________________________ (Witness) (Testator) Dated:________________ Dated:___________________ (b) When set forth in a writing executed subsequently to the will: I, , have designated my attorney, , (delete what is inapplicable) in my will dated _______________. Prior to signing my will, I was informed that: (i) subject to limited statutory exceptions, any person, including an attorney, is eligible to serve as my executor; (ii) absent an agreement to the contrary, any person, including an attorney, who serves as an executor for me is entitled to receive statutory commissions for executorial services rendered to my estate; (iii) if such attorney serves as my executor, and he or she or another attorney affiliated with such attorney renders legal services in connection with the executor`s official duties, he or she is entitled to receive just and reasonable compensation for those legal services, in addition to the commissions to which an executor is entitled. ______________________ __________________________ (Witness) (Testator) Dated:________________ Dated:_____________________ 4. Compliance. The testator`s written acknowledgment of disclosure that conforms or substantially conforms to either model in subdivision 3 of this section shall be deemed compliance with subdivision 2 of this section. 5. Effect of absence of acknowledgment. Absent compliance with the requirements of subdivision 2 of this section, the commissions of an attorney who serves as an executor shall be one-half the statutory commissions to which such attorney as executor would otherwise be entitled pursuant to sections 2307 and 2313 of this article. 6. Rents. Notwithstanding the provisions of subdivision 5 of this section, the additional commissions to which an attorney who serves as an executor may be entitled pursuant to subdivision 6 of section 2307 shall not be diminished. 7. Time of determination of compliance. A determination of compliance with the requirements of subdivisions 1 and 2 of this section shall be made in a proceeding for the issuance of letters testamentary to an executor-designee to whom subdivision 1 of this section applies. 8. Definitions. For purposes of this section, the words or phrases hereafter shall be construed as follows: (a) Affiliated attorney. An attorney who, by reason of partnership, share holding, association or other relationship, express or implied, could participate directly or indirectly, with an executor-designee in fees for legal services rendered. (b) Executor-designee. An attorney named in a will or codicil, separately or jointly with one or more persons, as a primary, successor, ancillary, or preliminary executor. 9. Application. (a) This section shall apply to wills executed on or after January 1, 1996 and, irrespective of the date of any will, to estates of decedents dying after December 31, 1996. (b) With respect to wills executed prior to January 1, 1996: (i) subdivisions 1 and 2 of this section shall not apply if the testator has acknowledged the disclosure required by subdivision 1 of this section in a writing that conforms or substantially conforms to the model in paragraph (b) of subdivision 3 of this section; and (ii) the court in its discretion may waive application of subdivisions 1 and 2 of this section for good cause shown; good cause shall include, but not be limited to: (A) a good-faith effort after the enactment of this statute either to make to the testator the disclosure required by subdivision 1 of this section or obtain from the testator a written acknowledgment substantially conforming to that set forth in paragraph (b) of subdivision 3 of this section, or (B) otherwise establishing to the satisfaction of the court reasonable grounds to excuse the absence of a written acknowledgement substantially conforming to that set forth in paragraph (b) of subdivision 3 of this section; and (iii) section 4519 of the civil practice law and rules shall not apply. S 2308. Commissions of trustees under wills of persons dying, or under lifetime trusts created, on or before August 31, 1956 1. On the settlement of the account of any trustee under the will of a person dying on or before August 31, 1956, or under a lifetime trust established on or before August 31, 1956, the court must allow 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 the following commissions from principal: (a) For receiving principal (1) all sums of money constituting principal not exceeding $2,000 at the rate of 3 per cent; (2) all additional sums of principal not exceeding $10,000 at the rate of 1 1/2 per cent; (3) all sums of principal above $12,000 at the rate of 1 1/4 per cent; and (b) For paying out principal at the rate of 1 per cent. (c) Notwithstanding the provisions of section 8 of chapter 237 of the laws of 1978, commissions provided by paragraph (a) of this subdivision for receiving principal shall not be allowed to a trustee who qualifies to act as such on or after June 5, 1978, and shall not be allowed on additions of property received on or after June 5, 1978; such commissions on any increments in property that are payable by reason of any sale, exchange or liquidation of such property shall be allowed on the lesser of (1) the amount of such increments on the date of sale, exchange or liquidation of such property and (2) the amount of such increments on June 5, 1978; and such commissions on any increments in property that are payable by reason of any distribution of such property shall be allowed on the lesser of (1) the amount of such increments on the date of distribution of such property and (2) the amount of such increments on the effective date of this paragraph. 2. In addition to the commission allowed by subdivision one 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; and (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 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 otherwise explicitly provides, the annual commissions allowed by subdivision two of this section 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, such annual commissions shall be payable from the corpus of any such trust after allowance for the unitrust amount and shall not be payable out of such unitrust amount. 4. The commissions allowed by subdivision 2 may be retained by a trustee provided he furnishes annually as of a date not 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 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 statement 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 a life use or uses the trustee for the period of the measuring life or lives shall be entitled to commissions from income and principal at the rates and according to the terms otherwise provided in this section, except that he shall not be entitled to any commissions for paying out any amount of principal. 6. (a) 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 receiving and 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 receiving and 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 receiving and paying out principal allowed pursuant to this subdivision to a sole trustee unless there are more than 2 trustees in which case the full compensation for paying out principal allowed pursuant to this subdivision 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) 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 different 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 commissions from income and 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 pursuant to this subdivision to a sole trustee unless there are more than 2 trustees in which case the full annual commissions allowed pursuant to this subdivision 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
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Introduction to Wills
Introduction to Trusts
commission allowed herein shall, on a proportionate basis, be those allowed to a trustee of a trust having a value of $400,000 or more, 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 shall have a value of $100,000 or more or of $400,000 or more, as the case may be, at the end of the trust year, then the annual commission 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 provisions of paragraphs (a) and (b) of this subdivision to the contrary, if during the continuance of a trust created solely for public, religious, charitable, scientific, literary, educational or fraternal uses or during the continuance of such a trust after the termination of a life use or uses, 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 commission 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; provided however, if during the continuance of a trust created solely for public, religious, charitable, scientific, literary, educational or fraternal uses created prior to April 1, 1948, 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 commission allowed under subdivision 5 to a sole trustee unless there are more than 3, in which case the commission to which 3 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 hereof 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 1 such additional commission regardless of the number of trustees. If there are 2 or more trustees the additional commission herein provided 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. 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 shall receive such maximum and 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 this section. A trustee who has become 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 would have been entitled to if he 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 that section. 9. 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 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 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 he 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 commission for receiving principal, may retain an amount equal to 1/2 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. (d) The annual principal commissions allowed by subdivision 3 of this section as it existed on September 1, 1967 shall not be allowed 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 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 or has retained commissions on any item of income received and paid out by him prior to September 1, 1943 or on any item of income collected by him subsequent to September 1, 1943 he shall be entitled to no further commission on the item. 10. 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. 11. Where the will provides a specific compensation to a trustee he is not entitled to any other allowances for his services. 12. If a trustee of a trust is authorized or required by the terms of the will to accumulate income for any purpose permitted by law, any income so accumulated which is not added to principal of the trust shall be deemed a separate trust for purposes of this subdivision and the trustee shall be entitled to commissions in respect thereof at the rates and according to the terms and provisions of subdivisions 1 and 2 of this section as though, for purposes of computing commissions of the trustee, income so accumulated was principal. 13. 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. S 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. S 2310. Payment on account 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 the facts upon which the application is founded. 2. If the application be entertained process shall issue to all persons whose rights or interests would be affected by the payment applied for, citing them to show cause why the relief requested be not granted. 3. Upon the return of process the court may award a sum on account of commissions or make such other order or decree, if any, as justice shall require. 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 person or persons to whom an award of commissions may be made, or if the application be denied, by the petitioner personally. 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 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. S 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. S 2312. Commissions of corporate trustees 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 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 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, 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 after the termination of a life use or uses a corporate trustee shall be entitled to and may retain commissions from income in accordance with the provisions of subdivision 1 or 2 hereof, 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 from 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, 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, 6, 7 and 12 of section 2308 and subdivisions 1, 2, 5, 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 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 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 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 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, 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 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 does not desire to be furnished with any such statements his 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 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 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 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, as the case may be. 7. On the settlement of the account of any trustee 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 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 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 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 would have been entitled to if he 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 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 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 he 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 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 prior to September 1, 1943 or on any item of income received by him subsequent to September 1, 1943 he shall be entitled to no further commission on the item. S 2313. Multiple commissions of executors or trustees under wills of persons dying, or lifetime trusts established, after August 31, 1993 With respect to wills of persons dying, or lifetime trusts established, after August 31, 1993, if there are more than two executors or trustees, no more than two commissions shall be allowed unless the decedent has specifically provided otherwise in a signed writing, and the compensation thus allowable must be apportioned among the fiduciaries 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 for any one of them.